United States District Court, E.D. Texas, Sherman Division
HIDDEN COVE PARK & MARINA, and MARINE QUEST HIDDEN COVE, LP, MQTXM, LLC d/b/a TEXOMA PARK & MARINA
LEXINGTON INSURANCE COMPANY, and AIG CLAIMS, INC.
MEMORANDUM OPINION AND ORDER
L. MAZZANT, JUDGE
before the Court is Defendants' Motion to Amend Order to
Certify for Interlocutory Appeal (Dkt. #54). After reviewing
the motion and the relevant pleadings, the Court finds that
the motion should be denied.
action before the Court is a property insurance dispute, in
which Plaintiffs Hidden Cove Park & Marina and Marine
Quest Hidden Code, LP MQTXM, LLC d/b/a Texoma Park &
Marina sued Defendants Lexington Insurance Company and AIG
Claims, Inc. alleging breach of contract, violations of the
Texas Unfair Claims Practice Act, non-compliance with Texas
Insurance Code Chapter 542 Prompt Payment of Claims Act,
breach of common law good faith and fair dealing, and unfair
settlement practices. On June 30, 2017, Plaintiffs and
Defendants filed cross motions for partial summary judgment
asking the Court to interpret the language of the policy at
issue in the case. On November 9, 2017, the Court issued a
Memorandum Opinion and Order on the motions (Dkt. #53).
December 4, 2017, Defendants filed the present Motion to
Amend Order to Certify for Interlocutory Appeal (Dkt. #54).
On December 18, 2017, Plaintiffs field a response (Dkt. #55)
and Defendants filed their reply on December 22, 2017 (Dkt.
28 U.S.C. § 1292(b), the Court may certify one of its
orders for interlocutory appeal if it determines “that
such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation[.]”
Defendants allege that they have met this standard, and the
Court should amend to certify its Order.
Fifth Circuit, interlocutory appeals are exceptional and
“[d]o not lie simply to determine the correctness of a
judgment.” Clark-Dietz & Assocs.-Eng'rs,
Inc. v. Basic Constr. Co., 702 F.2d 67, 68 (5th Cir.
1983). Therefore, “[a]ll three…elements should
be present before a court certifies an order for
interlocutory appeal.” Monroe v. Cessna Aircraft
Co., No. 2:05-cv-250, 2006 WL 1305116, at *1 (E.D. Tex.
May 9, 2006). Additionally, “[s]atisfying these three
statutory criteria is not always sufficient, ‘as
district court judges have unfettered discretion to deny
certification even when all three are satisfied.'”
Commil USA, LLC v. Cisco Sys., Inc., No.
2:07-cv-341, 2011 WL 738871, at *4 (E.D. Tex. Feb. 23, 2011)
(internal citation omitted), judgment vacated on other
grounds by Commil USA, LLC v. Cisco Sys., Inc., 135
S.Ct. 1920 (May 26, 2015).
Court finds that the elements for certification of
interlocutory appeal are not met in the present case. First,
the Court's Order regarding the parties' cross
motions for summary judgment does not raise a controlling
question of law. An order may only be certified for
interlocutory appeal under § 1292(b) if it turns on
“a pure issue of law, i.e., a question the appellate
court can efficiently rule on without making an intensive
inquiry into the record.” Software Rights
Archive, LLC v. Google, Inc., No. 2:07-CV-511,
2009 WL 1797996, at *2 (E.D. Tex. June 24, 2009) (citations
omitted); see also IP Innovation LLC v. Google Inc.,
No. 2:07-CV-503-RRR, 2010 WL 691130 (E.D. Tex. Jan. 6, 2010)
(Rader, J. sitting by designation) (denying certification
because the question was not a “pure issue of
law”). The issue Defendants seek to certify for appeal
is the interpretation of the language of the policy (Dkt.
#54). The Court finds that this is not a pure question of
law, but instead a mixed question that would require the
Fifth Circuit to apply legal principles to the policy at
issue in the suit. Therefore, the Court finds that the
question is not suited for interlocutory appeal, and
Defendants' motion should be denied.
Defendants' motion should be denied because the case does
not present a substantial ground for a difference of opinion.
Courts have found that there is a substantial ground for a
difference of opinion when
a trial court rules in a manner which appears contrary to the
rulings of all Courts of Appeals which have reached the
issue, if the circuits are in dispute on the question and the
Court of Appeals of the circuit has not spoken on the point,
if complicated questions arise under foreign law, or if novel
and difficult questions of first impression are presented.
Ryan v. Flowserve Corp., 444 F.Supp.2d 718, 723-24
(N.D. Tex. 2006); see Adhikari v. Daoud &
Partners, No. 09-CV-1237, 2012 WL 718933, at *2 (S.D.
Tex. Mar. 5, 2012)). The Court finds that Defendants'
question does not present a substantial ground for a
difference of opinion, and thus the Defendants' motion
should be denied.
the Defendants had met the three requirements, the Court in
its discretion finds that the motion should be denied and the
parties should proceed through the litigation process ...