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Malcolm v. Acrylic Tank Manufacturing, Inc.

United States District Court, D. Nevada

April 30, 2019

STEVEN MALCOLM, Plaintiffs,
v.
ACRYLIC TANK MANUFACTURING, INC., et al, Defendants.

          ORDER

         Presently 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).

         Also 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).

         I. Facts

         This 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.

         To 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).

         On 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.

         II. Legal Standard

         A. Certification for interlocutory appeal

         In 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).

         A 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 (1995).

         Motions 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.” . . . . . .

         B. Transfer of venue

         28 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 ...

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