United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court is Defendants Push Software Interactions,
Inc.'s and Chad Jones's Motion for Certification of
Interlocutory Appeal pursuant to 28 U.S.C.A. § 1292(b)
and Stay of Proceedings and Brief in Support (Dkt. # 37).
Defendants Push Software Interactions, Inc. (PSI) and Chad
Jones ask the Court to certify for interlocutory appeal the
prior ruling denying their motions to dismiss. Plaintiff
Sleepbit, LLC (Sleepbit) responds that the Court's
opinion and order (Dkt. # 32) does not involve a controlling
question of law that is suitable for interlocutory appeal,
and defendants have delayed in making their request for
certification of an interlocutory appeal. Dkt. # 39.
11, 2018, Sleepbit filed this case in Tulsa County District
Court alleging claims of breach of contract, unjust
enrichment, and fraud against PSI, Jones, and Andre Doucette.
Sleepbit alleges that it entered a contractual relationship
with PSI for the development of a mobile app that could
collect data from Sleepbit's device that measured a
person's airflow during sleep. Dkt. # 2-1, at 5-20. PSI
is a Canadian corporation with its principal place of
business in Saskatchewan, Canada. Dkt. # 2, at 2. Jones is
the chief executive officer of PSI and Doucette was the
product director for PSI, and they are also citizens of
Canada for the purpose of diversity jurisdiction.
Id. at 2-3. Defendants filed a notice of removal
(Dkt. # 2), and each defendant filed a motion to dismiss for
lack of personal jurisdiction (Dkt. ## 12, 14, 16). The Court
granted Doucette's motion to dismiss, because he was
simply acting as an employee of PSI and he did not
purposefully direct his activities to the forum state. Dkt. #
32, at 19-20. However, the Court found that PSI and Jones
knowingly entered into a business relationship with an
Oklahoma entity, and PSI and Jones could have reasonably
foreseen being haled into Court in Oklahoma for claims
arising out of the business relationship. Id. at
Jones ask the Court to certify the Court's ruling on
their motions to dismiss (Dkt. # 32) for interlocutory appeal
under § 1292(b). Under § 1292(b), a district judge
may certify an interlocutory appeal 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.” If a district
judge makes this certification, the moving party may seek
leave from the court of appeals to pursue an interlocutory
appeal. Homeland Stores, Inc. v. Resolution Trust
Corp., 17 F.3d 1269, 1271 (10th Cir. 1994). Section
1292(b) is meant to be used sparingly and interlocutory
appeals under this section are rare. Camacho v. Puerto
Rico Ports Authority, 369 F.3d 570, 573 (1st Cir. 2004).
Interlocutory appeals may be permitted when an immediate
appeal of a controlling issue of law will avoid protracted
litigation. Koehler v. Bank of Bermuda Ltd., 101
F.3d 863, 865 (2d Cir. 1996); State of Utah by and
through Utah State Dep't of Health v. Kennecott
Corp., 14 F.3d 1489, 1495 (10th Cir. 1994). However,
“interlocutory appeals are ‘limited to
extraordinary cases in which extended and expensive
proceedings probably can be avoided by immediate and final
decision of controlling questions encountered early in the
action'.” Chesapeake Land Development Co. LLC
v. Chicago Title Insurance Company, 2018 WL 8287706, *1
(W.D. Okla. July 19, 2018) (quoting Utah State Dep't
of Health, 14 F.3d at 1495).
Court will initially consider whether PSI and Jones have
identified a “controlling question of law” that
is appropriate for an interlocutory appeal. The Court has
reviewed defendants' motion and it appears that the
“controlling question of law” raised by
defendants is generally whether the Court can exercise
personal jurisdiction over them. Dkt. # 37, at 2. This is a
mixed question of law and fact, and it is not the type of
pure or abstract legal issue that is suitable for
interlocutory appeal. “A ‘controlling question of
law,' as used in § 1292(b), means a pure question of
law requiring the resolution of ‘abstract' legal
issues; it is not the application of a legal question to the
particular facts of the case.” In re SemGroup
Energy Partners, L.P., 729 F.Supp.2d 1276, 1312 (N.D.
Okla. 2010) (citing Ahrenholz v. Bd. of Trustees,
219 F.3d 674, 677 (7th Cir. 2000)). “The legal question
must be stated at a high enough level of abstraction to lift
the question out of details of the evidence or facts of a
particular case and give it general relevance to other cases
in the same area of law.” Tarver v. Ford Motor
Company, 2017 WL 9477739, *2 (W.D. Okla. Mar. 10, 2017)
(quoting Ahrenholz, 219 F.3d at 1259). Defendants
disagree with how the Court applied the facts to the
applicable law, and they rely on the same and well-settled
law stated in the Court's opinion and order.
Defendant's motion would be better characterized as a
motion to reconsider than a motion than a motion to certify a
ruling for interlocutory appeal. The Court does not find that
there is a controlling question of law that is subject to
dispute and the Court declines to certify its opinion and
order (Dkt. # 32) for interlocutory appeal.
IS THEREFORE ORDERED that Defendants Push Software
Interactions, Inc.'s and Chad Jones's Motion for
Certification of Interlocutory Appeal pursuant to 28 U.S.C.A.
§ 1292(b) and Stay of Proceedings and Brief in Support
(Dkt. # 37) is denied.
 To the extent that defendants could be
seeking reconsideration, they repeat the same arguments that
have already been considered and rejected by the Court, and
the Court would find no basis to reconsider its ...