difference of opinion and that an immediate appeal from the order maymaterially advance the ultimate termination of the litigation, he shall so statein writing in such order. The Court of Appeals which would have jurisdictionof
action maythereupon,in its discretion, permit an appealto be taken from such order, if application is made to it within ten days afterthe entry of the order:
That application for an appealhereunder shall not stay proceedings in the district court unless the districtjudge or the Court of Appeals or a judge thereof shall so order.28 U.S.C. § 1292(b).(L)itigants confronted with a particularly injurious or novel privilege rulinghave several potential avenues of immediate review apart from collateralorderappeal.First, a party may ask the district court to certify, and the courtof appeals to accept, an interlocutory appeal involving 'a controlling questionof law" the prompt resolution of which "may materially advance the ultimatetermination of the litigation.' § 1292(b).
Mohawk Industries, Inc. v. Carpenter,
U.S. , 130 S.Ct. 599, 602, 175
458(2O09)(quoting 28 U.S.C. § 1292(b)). "Essentially there are four statutory criteria that guidethe court in deciding a § 1292(b) motion: (1) there must be a question of law; (2) it mustbe controlling; (3) it must be contestable; and (4) its resolution must speed up thelitigation."
703 F.Supp.2d 639, 665 (S.D.Tex. 2010)The first step is to ask the district court to certify the interlocutory order forpermissive appeal.If a party cannot petition for appeal unless the district court first enters anorder granting permission to do so or stating that the necessary conditionsare met, the district court may amend its order, either on its own or inresponse to a party's motion, to include the required permission orstatement. In that event, the time to petition runs from entry of the amendedorder.Fed.R.App.P.5(a)(3). "There is also a nonstatutory requirement: the petition must be filedin the district court within a reasonable time after the order sought to be appealed."
Ahrenholz v. Board of Trustees of University of
219 F.3d 674, 675 -676 (7
Case 4:10-cv-04545 Document 86 Filed in TXSD on 07/06/11 Page 3 of 9