State Ex Rel. Howes v. Peele

• Decision Date: 03 July 1995
• Docket Number: No. 5:94-25-CV-BR2.,5:94-25-CV-BR2.
• Citation: 889 F. Supp. 849
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: STATE of North Carolina, ex rel. Jonathan B. HOWES, Secretary, North Carolina Department of Environment, Health and Natural Resources, and Michael F. Easley, Attorney General, Plaintiff, v. W.R. PEELE, SR. TRUST, et al., Defendants. NORTH CAROLINA RAILROAD COMPANY, Defendant and Third-Party Plaintiff, v. W.R. PEELE, Jr., Third-Party Defendant.

889 F. Supp. 849

STATE of North Carolina, ex rel. Jonathan B. HOWES, Secretary, North Carolina Department of Environment, Health and Natural Resources, and Michael F. Easley, Attorney General, Plaintiff, v. W.R. PEELE, SR. TRUST, et al., Defendants.

NORTH CAROLINA RAILROAD COMPANY, Defendant and Third-Party Plaintiff, v. W.R. PEELE, Jr., Third-Party Defendant.

No. 5:94-25-CV-BR2.

United States District Court, E.D. North Carolina, Western Division.

July 3, 1995.

Robert R. Gelblum, Asst. Atty. Gen., N.C. Dept. of Justice, Raleigh, NC, for plaintiff.

L. Neal Ellis, Jr., Christopher Grafflin Browning, Jr., Jeffrey F. Cherry, Matthew Patrick McGuire, Hunton & Williams, Amos C. Dawson, III, Sean Callinicos, Maupin, Taylor, Ellis & Adams, Laurie B. Gengo, Terry Richard Kane, Poyner & Spruill, Herman Wolff, Jr., H. Spencer Barrow, Raleigh, NC, for defendants.

Laurie B. Gengo, Terry Richard Kane, Poyner & Spruill, Raleigh, NC, for third-party plaintiff North Carolina R. Co.

Walter Brock, Jr., Young, Moore, Henderson & Alvis, Raleigh, NC, for third-party defendant W.R. Peele, Jr.

ORDER

BRITT, District Judge.

Before the court is the motion of defendant J.W. York ("York") for clarification of the court's order filed 1 February 1995. Also before court are motions to amend the same order to certify it for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), as follows.

(1) Defendant North Carolina Railroad Company ("NCRR") has moved the court to certify the order for appeal based on the portion of the order granting summary judgment for plaintiff State of North Carolina ("State") and against NCRR on the issue of liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). NCRR has also moved to stay proceedings pending a ruling on its motion.

(2) Defendant W.R. Peele, Sr. Trust ("Trust") has moved the court to certify the order for appeal based on the portion of the order granting summary judgment for the State and against the Trust on the issue of CERCLA liability.

(3) Defendant Madeline S. Peele ("Madeline") has moved the court to certify the order for appeal based on the portion of the order granting summary judgment for the State and against Madeline on the issue of CERCLA liability.

Each of these three defendants submits that interlocutory appeal is appropriate because the 1 February 1995 order raises controlling questions of law as to which there are substantial grounds for differences of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

The issues have been fully briefed, and these matters are now ripe for disposition. For the following reasons, all of these motions will be denied.

The facts are thoroughly recounted in the court's order filed 29 September 1994 and need not be repeated herein. Acting on various motions for summary judgment made by the State and several defendants, all of which are described and addressed in detail in the 1 February 1995 order, the court found that there were no genuine issues of material fact and that the State was entitled to judgment as a matter of law on its causes of action pursuant to CERCLA. Accordingly, the court found liable under CERCLA defendants NCRR, the Trust, and Madeline, as well as defendants York and W.R. Peele Company, Incorporated, who have not moved for certification for interlocutory appeal. The court did not rule on the question of damages with regard to any of the defendants, reserving such for a later stage in the proceedings.

I. DISCUSSION

A. Motion for Clarification

Defendant York specifically requests clarification on whether the court intended that its order of 1 February 1995 impose joint and several liability upon all defendants at such time, or whether the court intended to save the determination of the nature and extent of each defendant's liability for a subsequent proceeding. Upon due consideration, the court is satisfied that the order speaks for itself and that such clarification is unnecessary. The court directs counsel's attention to pages 9, 26-28, and 30 of the order, which specifically address York's joint and several liability under CERCLA. For this reason, York's motion for clarification is DENIED.

B. Motions for Interlocutory Appeal

Defendants NCRR, the Trust, and Madeline move for a ruling that this court's 1 February 1995 order be certified for immediate appeal pursuant to 28 U.S.C. § 1292(b). Section 1292(b) provides as follows:

When a district judge, in making ... 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 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.

The purpose of § 1292(b) is to allow for an early appeal of an order when appellate-level resolution of issues addressed by that order may provide more efficient disposition of the litigation. Ford Motor Credit Co. v. S.E. Barnhart & Sons, Inc., 664 F.2d 377, 380 (3d Cir.1981). Section 1292(b), however, was not intended to allow interlocutory appeal in ordinary suits. Kraus v. Board of County Comm'rs, 364 F.2d 919, 922 (6th Cir.1966). Nor was it "intended as a vehicle to provide early review of difficult rulings in hard cases." Abortion Rights Mobilization, Inc., v. Regan, 552 F.Supp. 364, 366 (S.D.N.Y. 1982). Rather, it "is limited to extraordinary cases where early appellate review might avoid protracted and expensive litigation." Id.

Because Congress intended that § 1292(b) should be applied sparingly, the procedural requirements for interlocutory appeal under this section are to be strictly construed and applied. Myles v. Laffitte, 881 F.2d 125 (4th Cir.1989). Even so, the application of the statute in practice is not straightforward because of the great flexibility it provides to a district court in deciding whether to certify an order for appeal. This decision of whether to certify is wholly within the discretion of the court issuing that order. Graves v. C & S Nat'l Bank of Ga., 491 F.Supp. 280, 283 (D.S.C.1980) (citing Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir.1976)). In deciding whether to certify an order for interlocutory appeal, courts employ the two-prong test established by the language of § 1292(b). North Carolina ex rel. Long v. Alexander & Alexander Servs., Inc., 685 F.Supp. 114, 115 (E.D.N.C.1988). The first substantive clause of this test requires that there be a "controlling question of law as to which there is substantial ground for difference of opinion," while the second clause requires an inquiry as to whether an appeal would "materially advance the ultimate termination of the litigation." Id.

The first clause of this test consists in essence of two distinct parts, including a determination of whether the order "involves a controlling question of law" and a determination of whether there is "substantial ground for difference of opinion" regarding that question of law. See 28 U.S.C. § 1292(b). Of these two determinations, the criterion that there be substantial grounds for difference of opinion has given courts the least difficulty. 16 Charles A. Wright, et al., Federal Practice and Procedure § 3930, at 157 (1977). "District courts have not been bashful about refusing to find substantial reason to question a ruling of law, even in matters of first impression." Id.

Environmental cases, particularly CERCLA cases, often involve issues subject to significant dispute because of their complexity and because of the somewhat confusing language of CERCLA. See, e.g., City of Philadelphia v. Stepan Chem. Co., 14 Envtl. L.Rep. (Envtl.L.Inst.) 20,007, 20,008 (E.D.Pa. Aug. 23, 1983) (CERCLA case in which interlocutory appeal was certified). Simply because a case involves CERCLA litigation, however, it does not necessarily follow that a substantial ground for difference of opinion sufficient to warrant interlocutory appeal exists. See, e.g., United States v. Velsicol Chem. Corp., 28 Env't Rep.l Cas. (BNA) 1265 (W.D.Tenn. Apr. 6, 1988) (CERCLA case in which interlocutory appeal was not certified). Moreover, "a court is not bound to find reasonable cause for disagreement whenever authorities lack unanimity." Allied Princess Bay Co. # 2 v. Atochem N. Am., Inc., No. CV-91-4146, 1992 WL 135235, *3 (E.D.N.Y. May 29, 1992). Indeed, a district court has the discretion to find a lack of substantial ground for difference of opinion even though the only other reported decision on the issue at hand disagrees with the conclusions of the court. Singh v. Daimler-Benz, AG, 800 F.Supp. 260 (E.D.Pa.1992), aff'd, 9 F.3d 303 (3d Cir.1993).

The question of what constitutes a "controlling question of law" has given courts somewhat more difficulty because the courts have devised no set formula for making such a determination and, as a result, this criterion tends to blend with the second prong of the test for certification, which speaks to the potential for materially advancing the litigation. 16 Wright, et al., Federal Practice and Procedure § 3930, at 159. At the very least, a question is controlling if its incorrect disposition would require reversal of a final judgment for further proceedings. Id. (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.1974)). On the other hand, a question would clearly not be controlling if the litigation would necessarily continue regardless of how that question were decided. See id. A growing...