FABRICANT v. SEARS ROEBUCK CO

LENORE C. NESBITT, United States District Judge

This cause comes before the Court upon Defendant's Motion For Certification of Appeal of Order Granting Plaintiff's Motion for Reconsideration (D.E. #156) filed February 1, 2000. The Court has considered the motion, the response, the reply and the pertinent portions of the record.

Plaintiff Fabricant, a Sears Credit Card holder, alleges in her Amended Complaint that Defendants violated Florida Statutes §§ 627.33, 626.321, 624.605(1)(j), 627.682, and 624.15, in addition to violating the Truth in Lending Act, 15 U.S.C. § 1601 et seq., in connection with the sale of the Sears Credit Protection Plan ("SCPP"). The SCPP is a package of credit, life, disability, property, and unemployment insurance sold in connection with the Sears Card.

Count III of her complaint alleges Defendants violated the Florida statutes and that because of the violations of the Florida statutes the contracts between Plaintiff and Defendants are illegal and void. Therefore, Plaintiff requests that the Court order Defendants disgorge any profits from and Plaintiff awarded restitution of any consideration paid for these illegal contracts.

Throughout this litigation, continuing through this current motion, Defendants have characterized Count III as a private right of action under the Florida Statutes. On Defendants' Motion to Dismiss, this Court found that no private right of action existed under these Florida statutes and dismissed Count III. § See Order on Motion to Dismiss of September 30, 1999 (D.E. # 122). Plaintiff filed a Motion to Reconsider the Order Dismissing Count III of the Amended Complaint, citing case law not provided in prior briefs, in which Florida courts had allowed causes of action based upon nonactionable insurance code violations. See Order on Motion to Reconsider of December 16, 1999 (D.E. # 145). This Court granted Plaintiff's Motion to Reconsider and reinstated Count III of Plaintiff's Complaint. Id. On February 1, 2000, Defendants filed a Motion for Certification of the Order Granting Plaintiff's Motion for Reconsideration. See D.E. #156.

I. Timeliness

Plaintiff challenges the instant motion as untimely. Defendant's citeRichardson Electronics. Ltd v. Panache Broad. of Pennsylvania, 202 F.3d 957 (7th Cir. 2000) for the proposition that "[t]here is no time limit ... for seeking the district judge's permission to appeal under § 1292(b)." Id. at 958. In the very next sentence, the Seventh Circuit cautions that "a district judge should not grant an inexcusably dilatory request."Id.; see also Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir. 1981) (explaining that while the ten day time limitation is not an absolute bar, it exists to require expeditious consideration of interlocutory appeals). In the context of requests for interlocutory appeals, timely requests for certification are calculated in days, not months. See, e.g., Richardson, 957 F.3d at 958 (two month delay made appeal untimely); Morton College Bd. of Trustees v. Town of Cicero, 25 F. Supp.2d 882, 883 (M.D. Ill. 1998) (thirty day delay was untimely);see also Filbern v. Habitat for Humanity. Inc., 57 F. Supp.2d 833, 836 (W.D. Mo. 1999) (request for interlocutory appeal filed at same time as motion to dismiss). Here, Defendants waited forty-six days after the filing of the Motion to Reconsider without any explanation or excuse. Thus, the Court finds Defendant's delay is untimely, but even if timely, as discussed below, unwarranted.

II. Standard for Certification

Under 28 U.S.C. § 1292 (b), a district court may, in its discretion, certify an interlocutory order for appeal. Section 1292(b) requires that the district court determine that the order (1) involves a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. Harris v. Luckey, 918 F.2d 888, 892 (11th Cir. 1991).

There is no ground for difference of opinion in this case. At least since 1908 in Florida, the law has been well-settled that illegal contracts will not be enforced, unless the party seeking to enforce the contract was not in pan delicti with the wrongdoer. Stewart v. Stearns Culver Lumber Co., 48 So. 19, 25 (Fla. 1908); See Castro v. Sangles, 637 So.2d 989 (Fla.Dist.Ct.App. 1994) In such a case, the innocent party is entitled to restitution of the consideration which she tendered in performance of the invalid contract. Singleton v. Foreman, 435 F.2d 962, 969 (5th Cir. 1970) (interpreting Florida law). In Count III, Plaintiff Fabricant has alleged precisely these circumstances and there can be no disagreement that Plaintiff is entitled to pursue these claims if Defendants violated the Florida statutes as alleged.

An immediate appeal of the motion to reconsider will only delay, not advance, the termination of this litigation. First, § 1292(b) is to be used sparingly as an exception to the final judgment rule. Caterpillar v. Lewis, 117 S.Ct. 467, 475 (1996). Second, interlocutory appeals of denials of a motion to dismiss are less likely to advance the ultimate termination of the litigation because the Court must assume that all the facts alleged in the complaint are true. Filbern v. Habitat For Humanity. Inc., 57 F. Supp.2d 833, 836 (W.D. Mo. 1999). Such is particularly the case where as here, the basis for the claim is interrelated with those charged in the other counts. Even if the Motion for Reconsideration were reversed on interlocutory appeal, the case would still go forward. Thus, any error by this Court at this juncture along with others made in the future may be corrected best by the appellate court after final judgment.

Accordingly, it is hereby ORDERED and ADJUDGED that Defendant's Motion For Certification of Appeal of Order Granting Plaintiff's Motion for Reconsideration (D.E. #156) is DENIED.

DONE and ORDERED, in chambers, Miami, Florida, this 26th day of January, 2001.