Free Order - District Court of Arizona - Arizona

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Date: April 2, 2008
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MARLYN NUTRACEUTICALS, INC., an Arizona corporation,

) ) ) Plaintiff, ) ) vs. ) ) WILLIAM WONG, et al., ) ) Defendants. ) ___________________________________)

No. 2:02-cv-1876-HRH

O R D E R Renewed Motion for Interlocutory Appeal1 Plaintiff has filed a renewed motion for interlocutory appeal. The time for responding to this motion has not expired, and the court desires further input from plaintiff prior to calling upon World Nutrition to respond. The renewed motion presumably has reference to plaintiff's request contained in Marlyn's motion for reconsideration2 of the court's order regarding World Nutrition's motion for new trial. In the conclusion of that motion, Marlyn requested that, if

reconsideration were not granted with respect to the court's decision to allow a new trial as to damages, plaintiff be permitted to take an interlocutory appeal on what was there characterized as

Docket No. 350. Docket No. 285. - 1 -


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a pure legal issue.3

The court addressed this request in a case Plaintiff's request for a

status order of January 26, 2007.4

discretionary, interlocutory appeal was denied. The renewed motion for interlocutory appeal provides the court with precious little additional insight and no analysis of any authority for the proposition that the decision to grant a new trial as to damages only is a pure legal issue, nor is it clear to the court that an interlocutory appeal, if accepted by the Ninth Circuit, would materially advance the ultimate termination of this litigation. 28 U.S.C. 1292(b). In the latter regard, it is

certainly clear that a reversal of this court's decision granting a new trial would advance the termination of this litigation, but an affirmance would delay the litigation for something on the order of two years, after which the retrial would take place, with the possibility of yet another appeal to the Ninth Circuit Court. It

is the court's impression that the Ninth Circuit is disinclined to take cases like this which appear not to involve a pure legal issue and which are likely to result in multiple appeals. That said, the court's view of how plaintiff's renewed motion for an interlocutory appeal should be decided is not fixed. If

there is some pure legal issue that would be dispositive of the case, or if there are Ninth Circuit authorities suggesting that a case in the posture of this one might be taken up by the Ninth Circuit on interlocutory appeal, the court is quite willing to

Id. at 10. Docket No. 287 at 3. - 2 -


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consider those possibilities.

However, on the basis of what is

presently before it, the court sees no reason to alter its initial decision declining to recommend an interlocutory appeal. Finally, with respect to the issues that plaintiff might raise on an interlocutory appeal, the instant motion suggests that the court has taken the position that it intends "to employ the same instructions" used in the first trial of this case.5 That is only

half of what the court said. The court's case status order, entered February 29, 2008, said: "While the court would intend to employ

the same damages instructions as were used in the first trial, the court will certainly be open to suggestions for improving those instructions in light of the results of the first trial."6

Nevertheless, if plaintiff can demonstrate that there is some pure legal issue as regards instructions, which is not resolved by current circuit case authority, any such situation would be of interest to the court in considering plaintiff's renewed motion for interlocutory appeal. Plaintiff will please supplement its motion for interlocutory appeal on or before April 18, 2008. filed on or before April 28, 2008. DATED at Anchorage, Alaska, this 2nd day of April, 2008. Defendant's response shall be

/s/H. Russel Holland United States District Judge


Docket No. 350 at 2. Docket No. 341 at 4. - 3 -


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