Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

01-cv-2056-JLK

UNITED STATES AVIATION UNDERWRITERS, INC., a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, vs. PILATUS BUSINESS AIRCRAFT, LTD., a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation; PILATUS AIRCRAFT, LTD., a Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

PLAINTIFFS' OPPOSITION TO DEFENDANTS' "MOTION TO AMEND ORDERS PURSUANT TO 28 U.S.C. § 1292(b)" (Doc. 151)

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TABLE OF CONTENTS 1.0 2.0 3.0 4.0 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CERTIFICATION SHOULD BE DENIED, BECAUSE THE ORDERS DO NOT INVOLVE A "CONTROLLING QUESTION OF LAW" . . . . . . . . . . . . . . . . . . . . . 4.1 4.2 Admiralty Jurisdiction Is Not A "Controlling Question Of Law" . . . . . . . . . . . . . . . . . . . . . . . . . The Application Of Admiralty Law Will Not Necessarily Have A Material Affect On The Outcome Of This Case . . . . . . . . . . . . . . . . . . . . 2 3 4

6

6

7

5.0

CERTIFICATION SHOULD BE DENIED, BECAUSE THERE IS NO "SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION" . . . . . . . . . . . . . . . . . CERTIFICATION SHOULD BE DENIED, BECAUSE AN INTERLOCUTORY APPEAL WILL SIGNIFICANTLY DELAY, NOT ADVANCE, THE RESOLUTION OF THIS CASE . . . . . . . . . . . . . . . . . . . . . . . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

6.0

15 17

7.0

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TABLE OF AUTHORITIES Cases Bank of New York v. Hoyt, 108 F.R.D. 184 (D.R.I. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Boomsma v. Star Transp., Inc., 202 F.Supp.2d 869 (E.D.Wis. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Coopers and Lybrand v. Livesay, 437 U.S. 463 [98 S.Ct. 2454, 57 L.Ed.2d 351] (1978) . . . . . . . . . . . . . . . . . . . Edwards v. National Audubon Soc., Inc., 411 F.Supp. 744 (S.D.N.Y. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 [93 S.Ct. 493, 34 L.Ed.2d 454] (1972) . . . . . . . . . . . . . . . . . . . Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. (D.Colo.) 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Haraburda v. United States Steel Corporation, 187 F.Supp. 86 (D.Mich. 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In re City of Memphis, 293 F.3d 345 (6th Cir. (W.D.Tenn.) 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . In re Exxon Valdez, ­­ F.3d ­­, 2007 WL 1112677 (9th Cir. (D.Alaska) April 16, 2007) . . . . . . . In re Grand Jury Proceedings, 767 F.Supp. 222 (D.Colo. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

16

12

16

14

7

11

7

9

5, 7, 12

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TABLE OF AUTHORITIES Cases (continued) Kapossy v. McGraw-Hill, Inc., 942 F.Supp. 996 (D.N.J. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martens v. Smith Barney, Inc., 238 F.Supp.2d 596 (S.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paper Workers Intern. Union v. Continental Carbon Co., 428 F.3d 1285 (10th Cir. (W.D.Okla) 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . Primavera Familienstifung v. Askin, 139 F.Supp.2d 567 (S.D.N.Y. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ryan v. Flowserve Corp., 444 F.Supp.2d 718 (N.D.Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Seven-Up Company v. O-So Grape Co., 179 F.Supp. 167 (S.D.Ill. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Southern Pacific Co. v. Jensen, 244 U.S. 205 [37 S.Ct. 524, 61 L.Ed. 1086] (1917) . . . . . . . . . . . . . . . . . . . State of Utah v. Kennecott Corp., 14 F.3d 1489 (10th Cir. (D.Utah) 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . White v. Nix, 43 F.3d 374 (8th Cir. (S.D.Iowa) 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Williston v. Eggleston, 410 F.Supp.2d 274 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

12

10-11

5

12-13

14

8

5

15

14

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TABLE OF AUTHORITIES Cases (continued) Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 [116 S.Ct. 619, 133 L.Ed.2d 578] (1996) . . . . . . . . . . . . . . . . Statutes 28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6, 11-12, 15-16 8 8

7, 11

C.R.S. § 13-21-402.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C.R.S. § 13-21-403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Authorities 16 Wright & Miller, FED. PRAC & PROC. § 3929 (1996) . . . . . . . . . . . . . .

5

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1.0

INTRODUCTION.

The defendants' motion (Doc. 151) should be denied. An interlocutory appeal of the two orders identified in defendants' motion will only promote the disruptive and
inefficient piecemeal litigation of nondispositive collateral issues, while delaying the resolution of this six-year-old case.

·

The Court's order on the economic loss rule (Doc. 48) ­ issued twenty-six months ago ­ is not one of the two orders identified in defendants' motion (Doc. 151). Thus, the Court of Appeals will not be reviewing this Court's ruling on the economic loss rule, even if the defendants' motion is granted.

·

There is no reason to suspect that the Court abused its broad discretion when it denied the defendants' motion for reconsideration (Doc. 78). Interlocutory review of this purely discretionary ruling would be futile.

·

Likewise, admiralty law has never been applied in an aviation tort case like this. On at least three occasions (Doc. 30, 60 and 114), the defendants have tried to establish a link with "traditional maritime activities," and they have failed to do so on each occasion. Based on the present record, an interlocutory appeal of the Court's order denying the defendants' motion for application of admiralty law (Doc. 149) will only further delay the trial and resolution of this matter under Colorado state law.

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2.0

SUMMARY OF ARGUMENTS. The Court should exercise its discretion, and deny the defendants' request to

amend two previous orders (Doc. 78 and 149), because the defendants have failed to satisfy any of the statutory requirements for an interlocutory appeal (28 U.S.C. § 1292(b).)

1.

First, the issue of whether admiralty jurisdiction exists is not a "controlling question of law." Admiralty law does not preempt Colorado state law on most of the issues described in defendants' motion, and a new trial will probably not be required even if the Court of Appeals does someday reach the unlikely conclusion that this case should have been tried under admiralty law (instead of Colorado state law.) While the economic loss rule might be a "controlling question of law," the defendants have not asked the Court to certify the only order that squarely addresses that particular issue (Doc. 48.)

2.

Second, there is no "substantial ground for difference of opinion" as to whether

admiralty jurisdiction exists in this case: it clearly does not. No federal court
has ever applied admiralty law in an aviation tort case like this, where the parties, claims and circumstances have absolutely no connection with any "traditional maritime activities." Interlocutory review of this choice-of-law ruling ­­ in the absence of any new facts which establish the necessary connection with "traditional maritime activities" ­­ would be a pointless exercise.

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3.

Third, an immediate interlocutory appeal will not "materially advance the

ultimate termination of the litigation." This six-year-old case is set to begin a
relatively brief trial on June 11, 2007. An appeal will not be resolved for at least several months or more. An interlocutory appeal would do nothing to "speed up" the pace of this litigation, and would only substantially delay (not advance) the final disposition of this case.

In sum, this is definitely not the kind of exceptional case where the need for immediate interlocutory review of the Court's orders justifies a departure from the general rule favoring a single appeal from a final judgment accompanied by a complete record. Based on the foregoing, the plaintiffs respectfully submit that the defendants' untimely eve-oftrial efforts to derail this lawsuit should be rejected, and the defendants' motion (Doc. 151) should be denied.

3.0

LEGAL STANDARDS. "A motion for certification must be granted sparingly, and the movant bears the

heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted." (Bank of New York v. Hoyt, 108 F.R.D. 184, 189 (D.R.I. 1985).)

(b) When a district judge, in making in a civil action 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. ... (28 U.S.C. § 1292(b))

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"The statute imposes four criteria to be met before an issue may be certified for appeal under § 1292(b): (1) the action must be a 'civil action'; (2) the court must conclude that the order from which appeal is to be taken involves a 'controlling question of law'; (3) as to that question there must be 'substantial ground for difference of opinion'; and (4) the court must believe that 'an immediate appeal from the order may materially advance the ultimate termination of the litigation.'" (In re Grand Jury Proceedings, 767 F.Supp. 222, 223 (D.Colo. 1991).) "The determination of whether Section 1292(b) certification is appropriate under the above standards is in the discretion of the district court." (Primavera Familienstifung v. Askin, 139 F.Supp.2d 567, 569-570 (S.D.N.Y. 2001).) Participation of the district court in certifying permissive interlocutory appeals is the indispensable first step of § 1292(b) appeal. ... The requirement that the district judge certify the order was deliberately suggested, and deliberately adopted to secure an initial judgment on the desirability of appeal by the trial judge as the person most familiar with the litigation. The initial determination that appeal is desirable is confided to the discretion of the district judge, relying on the criteria specified in the statute. ... The district judge is given authority by the statute to defeat any opportunity for appeal by certification, in deference to familiarity with the case and the needs of case management. (16 Wright & Miller, FED. PRAC & PROC. § 3929 (1996).)

Certification under section 1292(b) "should be limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action." (State of Utah By and Through Utah State Dept. of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. (D.Utah) 1994).) -5Access Air 0NR/PO/WO Lg24186/20070425_e

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4.0

CERTIFICATION SHOULD BE DENIED, BECAUSE THE ORDERS DO NOT INVOLVE A "CONTROLLING QUESTION OF LAW." The defendants have asked the Court to certify two orders (Doc. 78 and 149) for

immediate interlocutory appeal. The first order (Doc. 78) is a one-sentence minute order denying the defendants' motion for reconsideration (Doc. 60) of a previous order (Doc. 48) that denied the defendants' motion for summary judgment. The second order (Doc. 149) addressed six pretrial motions in limine filed by the defendants. The defendants allege that these orders should be certified for interlocutory appeal because they involve two separate "controlling questions of law." 1. First, according to the defendants, the question of whether the Court has admiralty jurisdiction is a "controlling question of law." (Doc. 151, pp. 3-4.) 2. Second, according to the defendants, "the application of the economic loss rule is also a controlling question of law under the circumstances." (Doc. 151, p. 6.)

4.1

Admiralty Jurisdiction Is Not A "Controlling Question Of Law." The defendants say that the issue of whether the Court has admiralty jurisdiction

is a controlling question of law," because the resolution of that issue "will dictate the substantive law to be applied" during the trial. (Doc. 151, p. 4.) This analysis misses the point, and is based on the defendants' flawed understanding of what kinds of issues are considered "controlling questions of law" for purposes of section 1292(b) certification. A "controlling question of law" is an issue that has the potential to end the litigation. "The critical requirement is that the question be one having the potential for -6Access Air 0NR/PO/WO Lg24186/20070425_e

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substantially accelerating disposition of the litigation. [Citation omitted.] If the correct answer to the question will end the matter pending, the question is controlling." (In re Grand Jury Proceedings, supra, 767 F.Supp. at p. 225.) A decision on whether admiralty law should (or should not) be applied here will definitely not end or accelerate the disposition of this lawsuit. It will, at most, change the substantive law that will be applied to the plaintiffs' claims, but those same claims will still have to be tried regardless of what law is applied. A "legal question of the type envisioned in § 1292(b) ... generally does not include matters within the discretion of the trial court." (In re City of Memphis, 293 F.3d 345, 351 (6th Cir. (W.D.Tenn.) 2002).) Here, both of the orders which are the subject of defendants' certification motion (Doc. 78 and 149) asked the Court to reconsider its previous ruling on admiralty law (Doc. 48.) Of course, a district court's decision to deny reconsideration of its earlier rulings is always reviewed for an abuse of discretion. (See, e.g., Floyd v. Ortiz, 300 F.3d 1223, 1227 (10th Cir. (D.Colo.) 2002).)

4.2

The Application Of Admiralty Law Will Not Necessarily Have A Material Affect On The Outcome Of This Case. "A legal issue is controlling if it could materially affect the outcome of the case."

(In re City of Memphis, supra, 293 F.3d at p. 351.) The defendants' motion points to several examples of how (they say) the application of admiralty law might affect the outcome of this case. But a closer look at the defendants' own examples proves the defendants are actually wrong. "The exercise of admiralty jurisdiction ... 'does not result in automatic displacement of state law.'" (Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 [116 S.Ct. -7Access Air 0NR/PO/WO Lg24186/20070425_e

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619, 133 L.Ed.2d 578] (1996).) Accordingly, if the defendants' request for certification is denied, and a post-trial appeal results in a finding that the trial should have been conducted under admiralty (not Colorado) law, the outcome will not necessarily be any different.1 For instance:

·

The defendants point to Colorado's statutory presumptions (C.R.S. § 13-21-403) and Colorado's codified defense of product misuse (C.R.S. § 13-21-402.5.) (Doc. 151, p. 5.) But even if admiralty law is applied here, these same Colorado statutes will still be used during the trial. Under the maritime preemption doctrine,

Colorado state law is not preempted by admiralty law unless "it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations." (Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 [37 S.Ct. 524, 529, 61 L.Ed. 1086] (1917).) Notably, the defendants have not even attempted to
1

Of course, plaintiffs are not saying that the application of admiralty law would have no

disruptive impact on the trial, and plaintiffs are not suggesting that admiralty law should be applied "out of an abundance of caution" since it doesn't matter what law is applied anyway. To the contrary, a change in the applicable law (from Colorado to admiralty) would have a very real and disruptive impact on the trial, since it would be necessary to delay the trial to rewrite the Pretrial Order and other pleadings to address issues not currently contemplated by the parties. Similarly, because the defendants have repeatedly failed to establish any nexus with "traditional maritime activities," the application of admiralty law is neither required nor appropriate. There is not enough time allowed in this brief to address all the ways in which the application of admiralty law might materially change the way in which this case is tried. However, on the few issues identified in defendants' motion (Doc. 151, pp. 4-6), the application of Colorado law (instead of admiralty law) would not necessitate a new trial even if it were later determined by the Court of Appeals that admiralty law (not Colorado law) should have been used.

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explain how or why Colorado's product liability statutes would be preempted if admiralty law (instead of Colorado law) was applied here. On the present record, there is no reason to suspect that Colorado's statutes "contravene the essential purpose" of an Act of Congress, or "work material prejudice to the characteristic features of the general maritime law," or "interfere with the proper harmony and uniformity of that law in its international and interstate relations."

·

The defendants also say that the application of admiralty law might result in a different prejudgment interest calculation. (Doc. 151, p. 5.) But this argument does nothing to support the defendants' request for an immediate interlocutory appeal on the eve of trial. For starters, it appears that contrary to the defendants' arguments, Colorado's prejudgment interest statutes will still be used in this case even if admiralty (instead of Colorado) law is applied. (See, e.g., In re Exxon Valdez, ­­ F.3d ­­, 2007 WL 1112677 (9th Cir. (D.Alaska) April 16, 2007) [district court sitting in admiralty jurisdiction erred by refusing to follow state law on prejudgment interest].) Moreover, if this case is tried and prejudgment interest is calculated based on Colorado law, and a post-trial appeal results in a finding that the Court should have used some other prejudgment interest rate or accrual date, a new trial would not be needed to correct that mathematical error. In other words, there are no good reasons to suspend this case indefinitely to allow the defendants to pursue an interlocutory appeal based on the potential for an incorrect post-trial arithmetical calculation of prejudgment interest.

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·

Next, the defendants argue that jurisdiction over this case should be immediately transferred to the U.S. Tenth Circuit Court of Appeals so that the upcoming trial is not conducted on the basis of Colorado's comparative fault statutes instead of admiralty's law of joint and several liability. (Doc. 151, p. 5.) Once again, however, the defendants' arguments do not really advance their own cause. If the jury allocates fault among the responsible parties as required by Colorado state law, then that allocation of fault does not mean that a new trial will have to be conducted if admiralty law (joint and several liability) is later determined to be the correct legal standard. Ironically, if the case was tried on a theory of joint and several liability (admiralty law), and it was later determined that the jury should have allocated fault (Colorado law), then a new trial would be required to make the necessary allocation. But allowing the jury to allocate fault (Colorado law) is completely harmless error if it is later determined that the principles of joint and several liability (admiralty law) apply to these claims.

·

Finally, the defendants argue that an immediate interlocutory appeal is necessary to resolve the issue of whether plaintiffs' tort claims are barred by the economic loss rule. (Doc. 151, pp. 5-6.) But the only two orders the defendants have asked to be certified for appeal (Doc. 78 and 149) do not address this particular issue, and the defendants have not asked the Court to certify the only order (Doc. 48) that does directly adjudicate that issue. The first order (Doc. 78) is a

discretionary denial of a motion for reconsideration, and the second order (Doc. 149) was made in response to a choice-of-law motion. (See, e.g., Paper, AlliedIndustrial, Chemical And Energy Workers Intern. Union v. Continental Carbon - 10 Access Air 0NR/PO/WO Lg24186/20070425_e

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Co., 428 F.3d 1285, 1291 (10th Cir. (W.D.Okla) 2005) ["Thus, it appears that the correct test for determining if an issue is appropriate for interlocutory review is (1) whether that issue was raised in the certified order; and (2) whether the issue can control the disposition of the order."])

As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court. The court of appeals may not reach beyond the certified order to address other orders made in the case. (Yamaha Motor Corp. v. Calhoun, supra, 516 U.S. at p. 205 [116 S.Ct. at p. 623] [italics in original].)

Accordingly, interlocutory appellate review of the two orders described in defendants' motion (Doc. 78 and 149) will not result in a final answer to the question of whether plaintiffs' claims are (or are not) barred by the economic loss rule.2

2

Congress intended that the interlocutory appeal statute (28 U.S.C. § 1292) should be used

only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation. (See, e.g., Haraburda v. United States Steel Corporation, 187 F.Supp. 86, 95 (D.Mich. 1960) [reviewing extensive legislative history].) On this point, it should be noted that the Court's decision on the economic loss rule (Doc. 48) was made on February 28, 2005 ­ more than two years ago. If the defendants had promptly sought certification of that order two years ago, then it is very likely that an interlocutory appeal might have benefited the Court and the parties in terms of avoiding "protracted and expensive litigation." But the defendants sat on their collective hands and did nothing to seek interlocutory review until now ­ on the eve of trial ­ after countless thousands of hours and hundreds of thousands of dollars have been spent preparing this case to begin trial in just a few short weeks. The defendants' current efforts at obtaining interlocutory review of the economic loss rule order (Doc. 48) are far too little, and much too late.

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The power of a district court to grant interlocutory appeal is strictly limited, and only exceptional circumstances will justify certification. (Coopers and Lybrand v.

Livesay, 437 U.S. 463, 475 [98 S.Ct. 2454, 2461, 57 L.Ed.2d 351] (1978).) In deciding whether to certify a particular order for certification, "[t]he efficiency of both the district court and the appellate court are to be considered, and the benefit to the district court of avoiding unnecessary trial time must be weighed against the inefficiency of having the relevant Court of Appeals hear multiple appeals in the same case." (Martens v. Smith Barney, Inc., 238 F.Supp.2d 596, 600 (S.D.N.Y. 2002).) This is clearly not an

"exceptional" case warranting certification under section 1292(b), and the potential application of Colorado law (rather than admiralty law) does not justify the inefficiency of piecemeal litigation and multiple appeals.

5.0

CERTIFICATION SHOULD BE DENIED, BECAUSE THERE IS NO "SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION." Certification is inappropriate unless the defendants convince the district court that

there is a "substantial ground for difference of opinion" on the matters addressed in the underlying orders. (28 U.S.C. § 1292(b).) "That standard implies that the question is difficult, novel, and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions." (In re Grand Jury Proceedings, supra, 767 F.Supp. at p. 226.)

Consistent with this line of thought, courts have found substantial ground for difference of opinion where: a trial court rules in a manner which appears contrary to the rulings of all Courts of Appeals which have reached the issue, if the circuits are in dispute on the question and the - 12 Access Air 0NR/PO/WO Lg24186/20070425_e

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Court of Appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented. [Citation omitted.] But simply because a court is the first to rule on a question or counsel disagrees on applicable precedent does not qualify the issue as one over which there is substantial disagreement. [Citation omitted.] Nor does a party's claim that a district court has ruled incorrectly demonstrate a substantial disagreement. [Citation omitted.] In the end, 'substantial' means just that-significantly great. (Ryan v. Flowserve Corp., 444 F.Supp.2d 718, 723-724 (N.D.Tex. 2006)) The defendants' motion should be denied, because the defendants have not demonstrated the existence of any "substantial ground for difference of opinion" as to the underlying orders (Doc. 78 and 149).

·

In the first order (Doc. 78), the Court did nothing more than exercise its discretion by denying the defendants' previous motion for summary judgment. The Court's refusal to reconsider a previous ruling raises no novel or complicated issues.

·

Likewise, the second order (Doc. 149) refused the defendants' suggestion that the applicable law should be changed on the eve of trial, because: "This case provides no basis for invoking admiralty jurisdiction other than a crash landing in water. The trip was an around-the-world promotional excursion from Boise, Idaho to Japan for a small group of Japanese individuals. There was no relationship, 'substantial' or otherwise, to

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law." (Doc. 149, p. 2.) The defendants have cited no cases which hold that admiralty law must be applied in this factual setting, nor have the defendants suggested that the Court's decision was contrary to all established legal precedent. In fact, the U.S. Supreme Court has plainly held that "neither the fact that a plane goes down on navigable waters nor the fact that the negligence 'occurs' while a plane is flying over such waters is enough to ... justify the invocation of admiralty jurisdiction." (Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 270 [93 S.Ct. 493, 505, 34 L.Ed.2d 454] (1972).)

In support of their motion, the defendants have done nothing more than articulate their own disagreement with the Court's orders. But the mere existence of such a disagreement is not enough to warrant the extraordinary remedy of immediate
interlocutory review. (Williston v. Eggleston, 410 F.Supp.2d 274, 277 (S.D.N.Y. 2006) ["Nor, for that matter, does the fact that the parties themselves disagree as to the interpretation of persuasive authority constitute 'a difference of opinion' sufficient to warrant certification."]) "A question of law `as to which there is substantial ground for difference of opinion' as that phrase is used in the statute, must be construed as synonymous with a substantial likelihood that [defendants'] position would prevail on appeal." (Seven-Up Company v. O-So Grape Co., 179 F.Supp. 167, 172 (S.D.Ill. 1959).) Because the facts, parties, and issues are all completely unrelated to "traditional maritime activities," it cannot be said in this case that the defendants' views regarding admiralty jurisdiction and maritime law will likely prevail on appeal.

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6.0

CERTIFICATION SHOULD BE DENIED, BECAUSE AN INTERLOCUTORY APPEAL WILL SIGNIFICANTLY DELAY, NOT ADVANCE, THE RESOLUTION OF THIS CASE. Indefinitely delaying the trial of this six-year-old case to allow the defendants to

pursue interlocutory appellate review of their allegations relating to admiralty jurisdiction and maritime law -- allegations which have been rejected by this Court on three separate occasions (Doc. 48, 78 and 149) ­­ would be plainly contrary to the requirements of section 1292(b).

·

First, it has not been shown that the application of admiralty law will have any real substantive effect on the outcome of this case. As discussed above, to the extent this case is tried under Colorado law, and a post-trial appeal from the final judgment yields a determination that the case should have been tried under admiralty law, that determination is unlikely to require a new trial on any material issues described in defendants' motion. Regardless of whether Colorado or

admiralty law is applied here, the same claims will have to be tried someday. "When litigation will be conducted in substantially the same manner regardless of our decision, the appeal cannot be said to materially advance the ultimate termination of the litigation." (White v. Nix, 43 F.3d 374, 378-379 (8th Cir. (S.D.Iowa) 1994).)

·

Second, certification for interlocutory appeal would be more likely to delay resolution of this case than to advance it. Discovery in this case is concluded. Trial is scheduled to commence in just a few weeks. The parties have submitted, and the Court has approved, a very detailed Pretrial Order. The Court has already - 15 Access Air 0NR/PO/WO Lg24186/20070425_e

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issued rulings on most pretrial motions, and the trial is scheduled to take only about 10 days. If the Court were to certify this matter for interlocutory appeal, it is unlikely that the U.S. Tenth Circuit Court of Appeals would be able to resolve the matter as expeditiously as this Court could at this juncture. When granting an interlocutory appeal will delay, rather than expedite, the ultimate outcome of the trial, federal courts have routinely declined to exercise their discretion to permit interlocutory appeals. (See, e.g., Boomsma v. Star Transp., Inc., 202 F.Supp.2d 869, 880 (E.D.Wis. 2002) ["Discovery has been concluded. Motions in limine have been filed. The case is ready for trial. If the choice-of-law issue were certified for interlocutory appeal, and a stay granted under Section 1292(b), trial would be postponed for an indefinite period. In short, certification under Section 1292(b) would only postpone the ultimate termination of this litigation, ..."]; Kapossy v. McGraw-Hill, Inc., 942 F.Supp. 996, 1004 (D.N.J. 1996) ["This case has been proceeding in this court since 1993. Discovery has been concluded. In limine motions have been filed and decided. Trial in this matter is scheduled to commence on Monday, October 28, 1996. If these issues were certified for interlocutory appeal, and a stay granted, under § 1292(b), trial would be postponed for an indefinite period. Ultimately, of course, there would be a trial in this matter, and that trial would be of approximately the same duration as it would have been without interlocutory appeal."] Edwards v. National Audubon Soc., Inc., 411 F.Supp. 744, 747 (S.D.N.Y. 1976) ["The request for certification is denied. The case is ready for trial and a maximum of five trial days will be required. The trial will proceed on June 3, 1976. The case will be disposed of

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before argument would be heard by the Court of Appeals if certification were granted."])

7.0

CONCLUSION. Based on the foregoing, plaintiffs respectfully submit that the defendants' motion

(Doc. 151) should be denied.

Respectfully Submitted, Dated: April 25 , 2007 s/ Jeffrey J. Williams Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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CERTIFICATE OF SERVICE U.S. Aviation Underwriters et al. v. Pilatus Business Aircraft etc. et al. D.Colorado Case No. 01-K-2056 [XXXXX] I hereby certify that on April 25, 2007 , I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: For Defendant Pratt & Whitney Thomas J. Byrne, Esq. Byrne, Kiely & White 1120 Lincoln Street, Suite 1300 Denver, CO 80203 Tel. (303) 861-5511 Fax (303) 861-0304 Email: [email protected] [email protected]

For Pilatus Defendants Robert B. Schultz, Esq. Law Offices of Robert B. Schultz 9710 W. 82nd Avenue Arvada, CO 80005 Tel. (303)456-5565 Fax (303)456-5575 Email: [email protected]

[

]

I hereby certify that on , I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: s/ Jeffrey J. Williams Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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