Seventh Circuit's holding in Gertz. The Gertz court found that a failure to comply with journalistic standards to be very relevant to determining whether a party acted with actual malice. The Gertz court focused on the fact that "the publisher had 'obvious reasons to doubt the veracity . . . or accuracy of the author of the defamatory statements, and conducted only the most perfunctory investigation of the truth or falsity of the statements in the article.'" Id. at 538. Additionally, the article was submitted for typesetting only three to four hours after it was received. The usual editing time was shortcut, not because it was hot news, but because of editorial preference and prior planning. Id. The court held that "there was more than enough evidence for the jury to conclude that this article was published with utter disregard for the truth or falsity of the statements contained in the article about Gertz." Id.
In the present case, plaintiff has set forth facts in the 12(n) Statement regarding defendants journalism similar to the facts highlighted by the Gertz court. Specifically, plaintiff sets forth the following: 1. The Weathers story was not "hot" news because it did not have to be aired immediately. (12(n) Stmt. P 29 (citing Ex. 5, Pennington Dep. 125:16-22)); 2. The Paramount defendants were under no particular deadline with respect to investigation of the Weathers story, and thus could have investigated the truth about Boese if they had chosen to do so. (12(n) Stmt. P 30 (citing Ex. 5, Pennington Dep. 32:9-13)). As in Gertz, this court finds that plaintiff has set forth enough facts to suggest that a genuine issue exists for trial as to whether defendants acted with utter disregard for the truth or falsity of the statement contained in the Hard Copy episode.
For the foregoing reasons, Paramount defendants motion to reconsider in part is denied.
Defendants have moved this court for an order certifying the above questions for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The decision whether to allow an immediate interlocutory appeal of a non-final order under section 1292(b) is within the discretion of the district court. Swint v. Chambers County Com'n, 514 U.S. 35, 131 L. Ed. 2d 60, 115 S. Ct. 1203, 1210 (1995). When deciding a motion for certification, the district court must consider the following factors: (1) whether the motion to be appealed involves a controlling question of law; (2) whether an immediate appeal from the order may materially advance the ultimate termination of the litigation; and (3) whether there is a substantial ground for difference of opinion on that question of law. 28 U.S.C. § 1292(b); Kirkland & Ellis v. CMI Corporation, 1996 U.S. Dist. LEXIS 17542, No. 95 C 7457, 1996 WL 674072 *2 (N.D. Ill. Nov. 19, 1996). Another consideration is whether certification would only prolong the life of the litigation at all the parties' expense. Id. (citing Harris v. Karri-On Campers, Inc., 640 F.2d 65, 68 (7th Cir. 1981)). Each element of the section 1292(b) test must be met before certification may be granted. Id. (citing Segni v. Commercial Office of Spain, 650 F. Supp. 1045, 1046 (N.D. Ill. 1987)).
The party seeking interlocutory review has the burden of persuading the court that "exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Fisons Limited v. United States, 458 F.2d 1241, 1248 (7th Cir.), cert. denied, 405 U.S. 1041, 31 L. Ed. 2d 581, 92 S. Ct. 1312 (1972). Courts generally disfavor piecemeal appeals in favor of a single appeal. Fisons, 458 F.2d at 1248.
Applying these principles, the court turns to the present motion for certification. The court must determine whether there is a substantial ground for difference of opinion on the question of law. An interlocutory review should not be allowed merely to provide a review of difficult rulings in hard cases. Kirkland & Ellis v. CMI Corporation, 1996 U.S. Dist. LEXIS 17542, No. 95 C 7457, 1996 WL 674072 at *4 (citing McCann v. Communications Design Corp., 775 F. Supp. 1506, 1534 (D.Conn. 1991)). If the central question of law has not been settled by controlling authority, the moving party must still show that there is a substantial likelihood that the district court ruling will be reversed on appeal. Id. (citing TCF Banking and Sav., F.A. v. Arthur Young & Co., 697 F. Supp. 362, 366 (D. Minn. 1988)).
While defendants have argued that controlling questions of law are involved, defendants have failed to demonstrate that the Seventh Circuit, viewing the facts in the light most favorable to the plaintiff, will reverse our ruling. Therefore, the interlocutory appeal will only serve to delay the course of this litigation. Accordingly, we deny defendants' motion for certification.
For all of the foregoing reasons, both Paramount defendants' motion for partial reconsideration and motion for certification are denied.
Ann Claire Williams, Judge
United States District Court
Dated: DEC 12 1996