Interlocutory Review Under Delaware Supreme Court Rule 42 Requires Exceptional Circumstances—Routine Motion-to-Dismiss Denials (Even in High-Profile Defamation Cases) Do Not Qualify

1. Introduction

This Delaware Supreme Court Order addresses whether Fox News Network, LLC (“FNN”) could pursue an interlocutory appeal from the Superior Court’s denial of FNN’s motion to dismiss Governor Gavin C. Newsom’s defamation action. The underlying dispute stems from FNN broadcasts and on-screen chyrons asserting that “Gavin Lied About Trump’s Call,” followed by a later segment stating, “Gavin Didn’t Lie, He Was Just Sloppy,” after FNN aired the unedited clip of President Trump’s remarks and addressed Newsom’s retraction demand.

The key issue before the Supreme Court was not the ultimate merits of the defamation claim. Rather, it was procedural: whether the Superior Court’s denial of certification for interlocutory review should be disturbed under the strict standards of Delaware Supreme Court Rule 42, which limits piecemeal appeals.

2. Summary of the Opinion (Order)

The Supreme Court of Delaware refused FNN’s interlocutory appeal. Giving due weight to the Superior Court’s view and exercising its discretion, the Court concluded that:

• Exceptional circumstances warranting interlocutory review did not exist under Rule 42.
• The potential benefits of interlocutory review did not outweigh the inefficiency, disruption, and probable costs of an interlocutory appeal.

In doing so, the Court aligned this case with the Superior Court’s approach to interlocutory certification in another defamation case involving FNN, where certification was denied to avoid turning routine motion-to-dismiss rulings into routine appeals.

3. Analysis

A. Precedents Cited

1) Martinez v. E.I. DuPont de Nemours and Co., Inc., 86 A.3d 1102 (Del. 2014)

The Superior Court’s underlying denial of the motion to dismiss applied the “Cryo-Maid factors” for forum non conveniens and quoted Martinez v. E.I. DuPont de Nemours and Co., Inc. for the factor list. Although the Supreme Court Order did not revisit the forum non conveniens merits, the procedural posture matters: the Superior Court’s decision was a paradigmatic, fact-intensive application of established doctrine—precisely the kind of ruling that Rule 42 generally disfavors reviewing midstream.

2) US Dominion, Inc. v. Fox News Network, LLC, 2022 WL 100820 (Del. Super. Jan. 10, 2022)

The Superior Court relied on US Dominion, Inc. v. Fox News Network, LLC to reject FNN’s argument that interlocutory review is appropriate merely because a reversal could end the case. The Dominion court warned that this rationale “would validate routine appeals from most motion to dismiss decisions.” In the present case, the Superior Court treated that admonition as directly applicable, and the Supreme Court agreed that the appeal was not “exceptional.”

3) Fox News Network, LLC v. US Dominion, Inc., 270 A.3d 273, 2022 WL 274235 (Del. Jan. 31, 2022) (TABLE)

The Order notes that the Supreme Court previously refused FNN’s interlocutory appeal in the Dominion matter. That procedural history reinforced institutional consistency: denials of motions to dismiss in defamation cases—without more—do not typically justify interlocutory intervention.

B. Legal Reasoning

The Court’s reasoning is anchored in Delaware Supreme Court Rule 42’s structure:

• Discretion and deference: The Court emphasized that interlocutory review is discretionary and that it gives “due weight” to the trial court’s assessment.
• Strict standards / exceptional circumstances: Even where an order concerns a “substantial issue of material importance,” Rule 42 requires more—namely “exceptional circumstances” justifying mid-case appellate review.
• Cost-benefit balancing: The Court concluded that any asserted benefit (e.g., a possible early end to the litigation) did not outweigh the systemic costs of disruption, inefficiency, and expense caused by interlocutory appeals.

Notably, FNN argued that certification was warranted because the Superior Court addressed a question “for the first time”: whether California Civil Code § 48a requires a pre-suit retraction demand. The Superior Court had rejected that as a basis for certification because it applied “well-established principles of statutory construction” and concluded § 48a requires a retraction demand within twenty days of publication, but not as a precondition to filing suit. The Supreme Court did not purport to decide that statutory question on the merits; instead, it agreed that the case did not meet Rule 42’s stringent threshold for interlocutory review.

The Order also reflects skepticism toward framing interlocutory review as a tool to police “forum shopping” in a case where the defendant itself is incorporated in Delaware; the Superior Court found that contention “meritless,” and the Supreme Court saw no exceptional injustice requiring immediate review.

C. Impact

Practically, the decision strengthens (and signals continued enforcement of) Delaware’s restrictive approach to interlocutory appeals:

• Fewer interlocutory appeals from motion-to-dismiss denials: Litigants should expect that arguments such as “reversal would end the case” will rarely be enough, especially when accepting them would open the door to routine appeals.
• First-impression questions are not automatically “exceptional”: Even if a trial court addresses a novel statutory interpretation question, certification may still be denied if the court views the issue as resolvable through ordinary legal methods and not uniquely urgent.
• Defamation litigation in Delaware proceeds to merits-stage more often: The Order does not validate the defamation claim, but it confirms that high-profile defamation defendants cannot assume early appellate off-ramps from pleading-stage rulings under Rule 42.

4. Complex Concepts Simplified

• Interlocutory appeal: An appeal taken before the case ends. Delaware tightly restricts these to avoid piecemeal litigation.
• Certification (Rule 42): The trial court must certify, and the Supreme Court must accept, that an immediate appeal is justified. It is not automatic.
• “Exceptional circumstances”: A high bar; the issue must be unusually urgent or important in a way that justifies disrupting the normal trial process.
• Forum non conveniens / “Cryo-Maid factors”: A doctrine allowing a court to decline a case when another forum is substantially more appropriate; the “Cryo-Maid factors” are the checklist Delaware courts use to evaluate that claim (e.g., access to proof, witness availability, applicable law).
• Actual malice: In defamation law involving public officials, a plaintiff generally must plausibly allege the defendant acted knowing a statement was false or with reckless disregard for truth. The Superior Court held it was “reasonably conceivable” on the pleaded facts.
• Retraction demand (California Civil Code § 48a): A statutory mechanism affecting remedies and retraction procedure; here, the Superior Court read it to require a retraction demand within a defined time after publication, but not as a prerequisite to filing suit.

5. Conclusion

The Delaware Supreme Court’s refusal of interlocutory review in Fox News Network, LLC v. Gavin C. Newsom reinforces a clear procedural principle: under Rule 42, interlocutory appeals are reserved for truly exceptional situations, and routine pleading-stage denials—particularly those whose appealability theory would convert many dismissals into immediate appellate contests—will not qualify. The decision underscores Delaware’s institutional preference for final-judgment review and signals that litigants must demonstrate more than novelty, litigation-ending potential, or generalized fairness arguments to justify midstream appellate intervention.