HAWAI`I WILDLIFE FUND, a Hawaii non-profit corporation; SIERRA CLUB-MAUI GROUP, a non-profit corporation; SURFRIDER FOUNDATION, a nonprofit corporation; and WEST MAUI PRESERVATION ASSOCIATION, a Hawaii nonprofit corporation, Plaintiffs,
COUNTY OF MAUI, Defendant.
ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND DENYING MOTION TO STAY PROCEEDINGS
SUSAN OKI MOLLWAY CHIEF UNITED STATES DISTRICT JUDGE
Defendant County of Maui (the “County”) moves for certification for interlocutory appeal of this Court’s summary judgment orders of May 30, 2014, and January 23, 2015. See ECF No. 169. The County also moves for a stay of further proceedings in this action during the pendency of an appeal. Id. Both motions are denied.
Appeals are generally permitted only from orders that “end the litigation on the merits and leave nothing for the court to do but execute the judgment.” Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010) (internal quotation marks and brackets omitted); accord Madoff v. Bold Earth Teen Adventures, Civ. No. 12-00470 SOM/RLP, 2013 WL 3179525, at *2 (D. Haw. June 20, 2013) (“The general rule is that an appellate court should not review a district court ruling until after entry of a final judgment.”).
However, 28 U.S.C. § 1292(b) contains a narrow exception to the final judgment rule permitting immediate review of certain nonfinal orders. The County seeks certification of this court’s summary judgment orders pursuant to that exception.
Under 28 U.S.C. § 1292(b):
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
Thus, pursuant to 28 U.S.C. § 1292(b), a district court may certify an interlocutory appeal if it is of the opinion that (1) the order involves a controlling question of law, (2) 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.
The party seeking an interlocutory appeal bears the “burden of demonstrating ‘exceptional circumstances’ justifying a departure from the basic policy of postponing appellate review until a final judgment has issued.” Madoff, 2013 WL 3179525, at *3. Because § 1292(b) “is a departure from the normal rule that only final judgments are appealable”, it “must be construed narrowly.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002).
Whether to certify an order for interlocutory appeal is “within the sound discretion of the district court.” Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., No. C 01-2821, 2004 WL 838160, at *2 (N.D. Cal. Apr. 19, 2004). “Even where the district court makes such a certification, the court of appeals nevertheless has discretion to reject the interlocutory appeal, and does so quite frequently.” James, 283 F.3d at 1068 n.6.
This court declines to certify its summary judgment orders for interlocutory appeal.
Certification of an interlocutory order under 28 U.S.C. § 1292(b) should be granted only in “rare” or “extraordinary” circumstances. James, 283 F.3d at 1068 n.6; U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th ...