UNITED STATES OF AMERICA, and the STATES OF CALIFORNIA, ILLINOIS, NORTH CAROLINA, and OHIO, Plaintiffs,
DISH NETWORK, L.L.C., Defendant,
SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on Defendant Dish Network L.L.C.'s 28 U.S.C. § 1292(b) Motion for Certification of an Interlocutory Appeal (d/e 277). The Motion is DENIED. The questions on which Defendant seeks certification are not controlling questions of law on which there is a substantial ground for difference of opinion. Because all of the statutory factors for certifying an interlocutory appeal are not met, certification of an interlocutory appeal is not appropriate.
On January 17, 2013, this Court, sua sponte, entered a Text Order setting the matter for a hearing. The Text Order advised the parties that the Court was considering consolidating this case, Case No. 09-3073, with the newly filed case of Federal Trade Commission v. Dish Network, L.L.C., Case No. 12-3221 and/or allowing Plaintiffs leave to amend their complaint in this case to raise the claims contained in Case No. 12-3221. See January 17, 2013 Text Order.
On March 12, 2013, following the hearing, this Court vacated Judge Cudmore's ruling (d/e 155) on Plaintiffs' Motion for Leave to File Second Amended Complaint. See Opinion (d/e 258); Sec. Am. Compl. (d/e 257) (containing a new Count II). After noting that Judge Cudmore's disposition could be set aside only if it were clearly erroneous or contrary to law, the Court found that under the circumstances of the case leave to amend should have been granted. March 2013 Opinion, p. 16. This Court granted Plaintiffs leave to file their Second Amended Complaint.
Defendant filed a Motion to Reconsider (d/e 264), to which Plaintiffs responded (d/e 275). On April 16, 2013, the Motion to Reconsider was denied by way of a Text Order.
On April 22, 2012, Defendant filed the Motion for Certification of an Interlocutory Appeal at issue herein. Defendant asks that the Court certify the March 12, 2013 Opinion for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
II. LEGAL STANDARD
A district judge may certify an interlocutory appeal of a nonfinal order if "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." 28 U.S.C. § 1292(b); see also Boim v. Quranic Literacy Inst. & Holy Land Found. For Relief and Dev. , 291 F.3d 1000, 1007 (7th Cir. 2002). The request must also be filed within a reasonable time. Ahrenholz v. Board of Tr. of the Univ. of Ill. , 219 F.3d 674, 675 (7th Cir. 2000).
Each of these criteria must be met before a district court can certify its order for an immediate appeal. Ahrenholz, 291 F.3d at 675. Once the district court certifies the request for an appeal, the Court of Appeals has the discretion to permit the appeal from such order. 28 U.S.C. § 1292(b). Section 1292(b) "must be used sparingly lest interlocutory review increase the time and expense required for litigation." Asher v. Baxter Intern. Inc. , 505 F.3d 736, 741 (7th Cir. 2007).
Defendant asserts that this Court's March 2013 Opinion presents numerous questions of law that meet the statutory criteria for certification. Defendant identifies the questions as follows:
1. May a Court sua sponte grant a previously denied motion for leave to amend complaint, following the close of all discovery and after the plaintiff filed a second lawsuit asserting a similar claim, and where such amendment prejudices the procedural and substantive rights of the defendant?
2. May a Court sua sponte substitute an amendment of a complaint for consolidation of two separate cases under ...