United States District Court, D. Nevada
before the court is defendant Acrylic Tank Manufacturing of
Nevada's (“ATM”) motion to modify and certify
for interlocutory appeal. (ECF No. 90). Reynolds filed a
response (ECF No. 97), to which ATM replied (ECF No. 103).
before the court is ATM's motion to transfer venue to the
United States District Court, District of Colorado. (ECF No.
127). Plaintiff Steven Malcolm (“Malcolm”) filed
a response (ECF No. 129), to which ATM replied (ECF No. 130).
action arises from a 2007 contract between Malcolm and ATM.
(ECF No. 1). ATM agreed to build and install a
state-of-the-art, three-story marine aquarium in
Malcolm's Scotland residence. Id. On November
30, 2015, the aquarium collapsed. Id. 25, 000
gallons of salt water and live fish spread across the
residence, causing damage to Malcolm's home and the
contents therein. Id.
assist with the aquarium, ATM retained Reynolds Polymer
Technology, Inc. (“Reynolds”), which is
incorporated and has its principal place of business in
Colorado. (ECF No. 22). Reynolds manufactured the acrylic
cylinder and shipped it from its factory in Grand Junction,
Colorado, directly to Scotland. Id. In or around
March 2010, ATM installed the aquarium in Scotland without
Reynolds' participation. (ECF Nos. 1, 22).
April 21, 2017, Malcolm filed this action, naming ATM and
Reynolds as defendants. (ECF No. 1). On May 17, 2017,
Reynolds filed a motion to dismiss for lack of personal
jurisdiction. (ECF No. 6). The court granted the motion on
July 6, 2017. (ECF No. 22). Seven months later, on November
27, 2017, Malcolm filed a complaint against Reynolds in the
United States District Court, District of Colorado.
See (ECF No. 127-1). ATM intervened in the Colorado
action on December 20, 2018. Id.
Certification for interlocutory appeal
general, circuit courts review only final orders and
decisions of a district court. See 28 U.S.C. §
1295(a)(1). However, § 1292(b) provides a mechanism by
which litigants can bring an immediate, interlocutory appeal
of a non-final order upon the consent of both the district
court and the court of appeals. See 28. U.S.C.
§ 1292(b); In re Cement Antitrust Litigation,
673 F.2d 1020, 1026 (9th Cir. 1982).
federal district court may certify for interlocutory review
any non-final order for which (1) there is “a
controlling question of law upon which” (2) there is a
“substantial ground for difference of opinion, ”
and (3) the immediate appeal of which “may materially
advance the ultimate termination of the litigation . .
.” 28. U.S.C. § 1292(b); In re Cement
Antitrust Litigation, 673 F.2d at 1026. The purpose of
§ 1292(b) is to provide “immediate appeal of
interlocutory orders deemed pivotal and debatable.”
Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 46
under § 1292(b) are to be granted sparingly. See
James v. Price Stern Sloan Inc., 283 F.3d 1064, 1068 n.6
(9th Cir. 2002); U.S. Rubber Co. v. Wright, 359 F.2d
784, 785 (9th Cir. 1966) (holding that certification should
be granted “only in extraordinary cases where decision
of an interlocutory appeal might avoid protracted and
expensive litigation.”). Importantly, “[i]t was
not intended merely to provide review of difficult rulings in
hard cases.” . . . . . .
Transfer of venue
U.S.C. § 1404(a) provides:
For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to
any other district or division where it might have been
brought or to any district ...