Opinion
CIVIL ACTION NO: 00-2561, SECTION: "J" (5).
February 14, 2001.
Before the Court is a Motion to Amend Order of January 19, 2001 (Rec. Doc. 20) filed by defendant Transocean Offshore Ventures, Inc., ("Transocean"). Plaintiff Clayton Scott Breeden ("Breeden") opposes the motion. The motion, set for hearing on February 14, 2001, is before the Court on briefs without oral argument. Having considered the applicable law and arguments presented by counsel, the Court concludes that the motion should be DENIED.
BACKGROUND
In its Minute Entry dated January 19, 2001, the Court granted Breeden's Motion to Withdraw Jury Request. The Court found that Breeden had invoked the Court's admiralty jurisdiction thereby giving neither party a right to trial by jury. Transocean, who desires a trial by jury, now seeks to appeal that interlocutory ruling and asks the Court, by way of the instant motion, to certify the issue for appeal pursuant to 28 U.S.C. § 1292(b)
DISCUSSION
Pursuant to 28 U.S.C. § 1292(b), the district court may certify an order for interlocutory appeal if the moving party demonstrates that the matter involves (1) a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. McAuslin v. Grinnell Crop., 2000 WL 1251966 (E.D. La. Sept. 5, 2000). A question of law is controlling if reversal would terminate the litigation. Id. (citing Northfield Ins. Co. v. George E. Buisson Realty Co., 1999 WL 777721 (E.D. La. Sept. 28, 1999)).
Assuming for purposes of this motion that there is "substantial ground for difference of opinion" on whether Transocean is entitled to a trial by jury, the motion must still be denied. An immediate appeal from the Court's order will not "materially advance the termination of the litigation." If the appellate court were to reverse, the case would nevertheless proceed to trial. Only the finder of fact would be different. Under these circumstances, the Court concludes that the circumstances of this case do no meet the standards of 28 U.S.C. § 1292(b). The Court will not amend its prior order.
Further, although Transocean alluded to appellate rights under section 1292(a)(3), the Court notes that the issues presented by any potential appeal at this stage do not meet the standards established by the Fifth Circuit for that provision. The Fifth Circuit reads section 1292(a)(3) as providing appellate jurisdiction only where the order at issue determines the parties' substantive rights and obligations. Allen v. Okam Holdings, Inc., 116 F.3d 153, 154 (5th Cir. 1997). Orders not determining parties' substantive rights are not appealable even when they have important procedural consequences. Id. (quotingIn re Ingram Towing Co., 59 F.3d 513 (5th Cir. 1995)). And while the Fifth Circuit has not addressed the issue directly, other appellate courts have held that an order denying a trial by jury is not one that affects substantive rights and liabilities.See, e.g., Wingerter v. Chester Quarry Co., 185 F.3d 657, 670-71 (7th Cir. 1999) (citing LaCapria v. Compagnie Maritime Belge, 373 F.2d 579 (2d Cir. 1967); Emerick v. Lambert, 187 F.2d 786 (6th Cir. 1951); Ore Navigation Corp. v. Thomsen, 256 F.2d 447 (4th Cir. 1958)). Given that the Fifth Circuit narrowly construes statutes permitting interlocutory appeals,Allen, 116 F.3d at 154, the appellate court would likely conclude that it has no jurisdiction over such an appeal.
Accordingly;
IT IS ORDERED that defendant's Motion to Amend Order of January 19, 2001, should be and is hereby DENIED.