RALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

KRISTAN S. MAYER

JOSEPH C. RUSSO

Trial Attorneys

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Disability Rights Section

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

DEBRA W. YANG

United States Attorney

LEON M. WEIDMAN

First Assistant United States Attorney

MICHELE MARCHAND

Assistant United States Attorney

California Bar No. 93390

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-2727

Facsimile: (213) 894-7819

Counsel for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) Case No.: CV-99-01034-FMC (SHx)

> )
>
> Plaintiff, ) PLAINTIFF UNITED STATES' OPPOSITION
>
> ) TO DEFENDANTS' MOTION TO CERTIFY
>
> ) FOR INTERLOCUTORY APPEAL
>
> v\. ) NOVEMBER 20, 2002 ORDER
>
> )
>
> )

AMC ENTERTAINMENT, INC., ) DATE: Jan. 21, 2003

[et]{.underline} [al]{.underline}., ) TIME: 10:00 a.m.

> ) JUDGE: Hon. Florence Marie Cooper
>
> )

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ )

**[BACKGROUND]{.underline}**

In November 2002, this Court issued a detailed, 49-page decision which,
among other things, affirmed the propriety of the United States'
interpretation of Standard 4.33.3, 28 C.F.R. Pt. 36, App. A § 4.33.3
(1994) and held that defendants AMC Entertainment, Inc. and American
Multi-Cinema, Inc. \[hereinafter collectively referred to as "AMC"\]
violated this Standard by placing wheelchair and companion seating
outside the stadium section of its stadium-style movie theaters.
[See]{.underline} Court's Order on Parties' Motions for Summary Judgment
(filed November 20, 2002) (Docket \# 397) (hereinafter "Court's Order of
Nov. 20, 2002\"). AMC now asks this Court to certify the entirety of
this Order for interlocutory review by the Ninth Circuit Court of
Appeals. Motion to Certify for Interlocutory Appeal November 20, 2002
Order Granting Plaintiff's Motion for Partial Summary Judgment (filed
Dec. 26, 2002) (Docket \# 409) ("AMC Cert. Mot."). AMC's motion is
flawed in several respects and should be rejected by this Court. First,
this question concerning the proper interpretation of Standard 4.33.3\'s
comparable line-of-sight requirement has already been fully briefed and
argued in the Ninth Circuit in [Oregon Paralyzed Veterans of America v.
Regal Cinemas, Inc.]{.underline}, 142 F. Supp. 2d 1293 (D. Or. 2001)
[appeal]{.underline} [docketed]{.underline}, No. 01-35554 (9th Cir. June
13, 2001; argued Dec. 2, 2002) ("[Regal]{.underline}"). As such, the
identical question in this case is not -- or will not be as soon as the
opinion in [Regal]{.underline} is issued \-- a controlling question of
law as to which there is substantial grounds for difference of opinion.
In addition, to grant interlocutory review of that question in this case
would further delay ultimate termination of this case and waste the time
and resources of this Court, the appellate court and the United States.

Also, this Court has not yet determined liability, or lack thereof, for
several categories of non line-of-sight violations in AMC's
stadium-style theaters. Presently pending before this Court is the
United States' Motion for Partial Summary Judgment on Defendants'
Failure to Comply with the Standards for Accessible Design of Elements
Not Relating to Lines of Sight. (Docket \# 379) ("US SJ on Non
Line-of-Sight Issues"). This motion establishes many ADA violations just
in the twelve AMC stadium-style movie theater complexes surveyed by the
United States. These violations include: insufficient maneuvering space
at doors; insufficient numbers of assistive listening devices;
improperly placed or total lack of visual fire alarms; protruding
objects; excessive cross slopes at designated accessible parking spaces;
improper or lack of signs; auditorium violations, including hundreds of
interior ramp slopes that are too steep; and toilet room violations.
[See]{.underline} [id.]{.underline} In addition to these outstanding
liability issues,[^1] this Court has not yet adjudicated the remedial
phase of this litigation. Finally, the United States is poised to
present its proposal regarding how best to administer the remedial phase
of this litigation in order to move expeditiously using the minimum
amount of the Court's resources, once all liability issues have been
fully briefed and argued before this Court later this month.

Despite these factors, defendant AMC filed a broad, non-specific Motion
to Certify for Interlocutory Appeal November 20, 2002 Order Granting
Plaintiff's Motion for Partial Summary Judgment ("AMC Cert. Mot.") that
does not narrowly focus the question for interlocutory appeal. While AMC
has asserted that it is seeking interlocutory review of more than one
question of law, including the question of the proper interpretation of
Standard 4.33.3, nowhere in AMC's motion to certify does it state with
any specificity what issues, other than the proper interpretation of
Standard 4.33.3, it seeks to certify. For all of the reasons discussed
herein, AMC's Motion to Certify should be denied.

# 

# ARGUMENT

The general rule is that an appellate court should not review a district
court ruling until after entry of a final judgment. [Coopers & Lybrand
v. Livesay]{.underline}, 437 U.S. 463, 474, 98 S. Ct. 2454, 2461, 57 L.
Ed. 2d 351 (1978); [In re Cement Antitrust Litig.]{.underline}, 673 F.
2d 1020, 1026 (9^th^ Cir. 1982), *aff'd sub nom.* [Arizona v. Ash Grove
Cement Co.]{.underline}, 459 U.S. 1190, 103 S. Ct. 1173, 75 L. Ed. 2d
425 (1983); [see]{.underline} 28 U.S.C. § 1291; [Yakima Products, Inc.
v. Industri Ab Thule et al.]{.underline}, 1998 WL 173205, \*1 (N.D. Ca.
1998) (copy attached as Exhibit A). An exception to this general rule is
set out in 28 U.S.C. § 1292(b). Section 1292(b) provides, in pertinent
part, that

> When a district judge, in making in a civil action an order not
> otherwise appealable under this section, shall be of the opinion that
> 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, he shall so state in writing in such order . . .
> *Provided, however,* That application for an appeal hereunder shall
> not stay the proceedings in the district court unless the district
> judge of the Court of Appeals or a judge thereof shall so order.

28 U.S.C. 1292(b).

It has been generally held that § 1292(b) appeal is to be "used
sparingly and only in exceptional cases" in furtherance of the
long-standing federal policy against piecemeal appeals. [U.S. v.
Woodbury]{.underline}, 263 F.2d 784, 788 n. 11 (9^th^ Cir. 1959);
[Vaughn v. Regents of the Univ. of Cal]{.underline}, 504 F. Supp. 1349,
1355 (E.D. Cal. 1981). Certification is only proper "under the most
unusual circumstances where the immediate appeal might avoid protracted
and costly litigation."[^2] [U.S. Rubber Co. v. Wright]{.underline}, 359
F. 2d 784, 785 (9^th^ Cir. 1966); [In re Cement Antitrust
Litig.]{.underline}, 673 F. 2d 1020, 1026 (9^th^ Cir. 1982), *aff'd sub
nom.* [Arizona v. Ash Grove Cement Co.]{.underline}, 459 U.S. 1190, 103
S. Ct. 1173, 75 L. Ed. 2d 425 (1983); [Vaughn]{.underline}, 504 F. Supp.
at 1354.

The party seeking certification of an interlocutory appeal has the
burden to show the presence of those exceptional circumstances. [Coopers
& Lybrand]{.underline}, 437 U.S. at 474-75; [In re Cement Antitrust
Litig.]{.underline}, 673 F. 2d at 1026; [see]{.underline}
[also]{.underline} [Fukuda v. County of Los Angeles]{.underline}, 630 F.
Supp. 228, 229 (C.D. Cal. 1986). AMC has not and cannot meet this
critical standard.

A.  **AMC's Motion to Certify is Too Vague Regarding the Precise
    Questions of Law For Which It Seeks Review**

AMC alleges that the challenged Order involves several "controlling
questions of law" for which it seeks interlocutory review. AMC Cert.
Mot. at 1. Nowhere in AMC's moving papers does it state with sufficient
specificity the alleged questions for which it now seeks certification.
Rather, AMC simply states that it seeks certification of this Court's
"Order of November 20, 2002\" and the "propriety of the \[United
States\] Department \[of Justice's\] interpretation of Standard 4.33.3."
[Id.]{.underline} But the extensive Order from which AMC seeks
interlocutory appeal resolved several motions and issues including: the
parties' cross-motions for Partial Summary Judgment on the line-of-sight
issues; the United States' Motion to Strike the September 26, 2002
Declaration of Gregory Hurley; the United States' Motion for Summary
Judgment regarding Defendants' Affirmative Defenses; and AMC's
evidentiary objections concerning materials prepared by the United
States in support of its motion for summary judgment. [See]{.underline}
Court's Order of Nov.20, 2002 at 2, 4 n.3, 8 n.6, 15 n.8, 21 n. 11. Some
of the issues resolved in this Order involve questions of fact and some
involve mixed questions of law and fact, and so are inappropriate for
interlocutory appeal. [See]{.underline} 28 U.S.C. § 1292(b); 16 Wright,
Miller & Cooper, [Federal Practice and Procedure]{.underline}, § 3930
(1996); [see]{.underline} [also]{.underline} [Clark-Dietz and
Associates-Engineers, Inc. v. Basic Constr. Co.]{.underline}, 702 F. 2d
67, 68 (5^th^ Cir. 1983); [Abortion Rights Mobilization, Inc. v.
Regan]{.underline}, 552 F. Supp. 364, 366 (S.D.N.Y. 1982). Accordingly,
it is difficult, if not impossible, to discern which issues AMC seeks to
appeal at this time to the Ninth Circuit. While the United States can
surmise, albeit without complete assurance, that AMC is seeking
interlocutory review of the proper interpretation of the language in
Standard 4.33.3 regarding "lines of sight comparable," it cannot and
should not be expected to hypothesize what other issues AMC seeks
review. Moreover, it would be inappropriate for either the United States
or this Court to attempt to divine what those questions of law are -
that responsibility lies with AMC and it has failed to meet that burden.
[See]{.underline} [McCann v. Communications Design Corp.]{.underline},
775 F. Supp. 1506, 1534 (D. Conn. 1991) (denied plaintiff's request for
certification finding conclusory assertions that the court's order met
the requirement of 28 U.S.C. § 1292(b) insufficient); [see]{.underline}
[also]{.underline} [Clark-Dietz]{.underline}, 702 F. 2d at 68 (Court of
appeals must rely on would-be appellant to supply in the petition or
supporting memorandum an adequate presentation of facts and statement of
precise nature of controlling question of law involved). As such, AMC's
Motion to Certify should be denied.

B.  **The Appropriate Interpretation of Standard 4.33.3 is Not a
    Controlling Question of Law About Which There is Substantial Ground
    for Difference of Opinion**

In order for this Court to find that interlocutory appeal is
appropriate, it needs to determine that the issue (or issues) to be
certified involves a controlling issue of law about which substantial
ground exists for difference of opinion. 28 U.S.C. §1292(b);
[Yakima]{.underline}, 1998 WL 173205, at \* 2. While an issue need not
be dispositive in order to be "controlling," [U. S. v.
Woodbury]{.underline}, 263 F. 2d at 787, if "resolution of the issue on
appeal could materially affect the outcome of litigation in the district
court" it is deemed "controlling." [In re Cement,]{.underline} 673 F. 2d
at 1026; [U.S. Rubber Co. v. Wright,]{.underline} 359 F. 2d 784, 785
(9^th^ Cir. 1966); [Yakima]{.underline}, 1998 WL 173205, at \* 2. The
Ninth Circuit has made clear, however, that simply because an issue
could be overturned on appeal and so save some time, effort and expense
at the district court level does not mean that it is "controlling." [In
re Cement]{.underline}, 673 F. 2d at 1027.

> "The precedent in this circuit has recognized the congressional
> directive that section 1292(b) is to be applied sparingly and only in
> exceptional cases, and that the 'controlling question of law'
> requirement be interpreted in such a way to implement this policy
> \[internal citations omitted\]. Such precedent prohibits us from
> disregarding the 'controlling question of law' requirement in the
> statute despite the fact that judicial resources might be saved by so
> doing."

[Id.]{.underline}

Already pending before the Ninth Circuit is an appeal in
[Regal]{.underline}, which concerns the very same line-of-sight issue
addressed in this Court's Order of Nov. 20, 2002. Because this appeal
will inevitably be decided by the Ninth Circuit before interlocutory
appeal in this case could be decided, a later ruling on AMC's motion for
certification of an interlocutory appeal will not advance the ultimate
termination of this case. [See]{.underline} General Orders of United
States Court of Appeals for the Ninth Circuit, 4.1 (providing that the
panel which first takes the issue has priority and all other panels
before which the issue is pending shall enter an order vacating or
deferring submission pending a decision by the first panel).

Like this case, [Regal]{.underline} involves a challenge pursuant to
Standard 4.33.3 to the wheelchair seating locations in six complexes of
Regal's stadium-style theater complexes. [See]{.underline} [Oregon
Paralyzed Veterans of America v. Regal Cinemas, Inc.]{.underline}, 142
F. Supp.2d 1293, 1294 (D. Or. 2001). The district court in
[Regal]{.underline} found that the wheelchair seating in the six theater
complexes at issue is located in the first five rows of seats of the
traditional-sloped floor portion of the theater in front of the stadium
style seating section. [Id.]{.underline} The [Regal]{.underline}
plaintiffs argued that these wheelchair locations violate Standard
4.33.3, because, as the United States maintains in this case, Standard
4.33.3 requires the provision of comparable lines of sight, which is not
limited to a merely unobstructed view, but rather, includes comparable
viewing angles. Regal, like AMC here, argued that Standard 4.33.3 does
not impose a viewing angle standard and simply requires that a patron
who uses a wheelchair must be provided an unobstructed view of the movie
screen. [Id.]{.underline} at 1295. The defendant in that case, Regal
Cinemas, Inc., relied heavily on the Fifth Circuit decision in [Lara v.
Cinemark USA, Inc.]{.underline}, 207 F.3d 783 (5^th^ Cir. 2000) in
support of its argument. In granting Regal's motion for summary
judgment, the district court, erroneously relying on [Lara]{.underline},
held that Standard 4.33.3\'s "lines of sight comparable" requirement
does not require anything more than that theaters provide patrons who
use wheelchairs with unobstructed views of the screen. [Id.]{.underline}
at 1297. Plaintiffs appealed the district court's ruling, and at this
time the appeal has been fully briefed by both parties, and includes the
filing of *amicus* briefs by the United States and the National
Association of Theater Owners, Inc. The appeal was argued before a Ninth
Circuit panel on December 2, 2002.

In its motion for certification, AMC maintains that the "resolution on
appeal of the propriety of the Department's interpretation of Standard
4.33.3 materially affects the outcome of the litigation in district
court because the issue goes directly to the heart of this action . . .
." AMC Cert. Mot. at 4. This sweeping assertion by AMC, however,
completely ignores the pendency and the import of the
[Regal]{.underline} appeal. At issue in the [Regal]{.underline} appeal
is exactly the question AMC apparently seeks to appeal here (or at least
the one posed in this portion of its motion) to the Ninth Circuit:
whether comparable lines of sight means more than just an unobstructed
view to the screen. The same issue will likely be decided by the
[Regal]{.underline} appellate panel, and because the [Regal]{.underline}
appeal has already been briefed and heard by the Ninth Circuit, it will
be decided by the [Regal]{.underline} panel long before AMC's § 1292(b)
appeal, if granted by this Court and the Ninth Circuit, would be
decided. [See]{.underline} General Orders of United States Court of
Appeals for the Ninth Circuit, 4.1.[^3]

C.  **Interlocutory Appeal of the Line-of-Sight Issue Would Not
    Materially Advance Ultimate Termination of the Litigation**

Separate but closely tied to the mandate that a question of law must be
"controlling" in order for interlocutory appeal to be granted, is the
statutory requirement that the district court determine that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation. 28 U.S.C. § 1292(b); [see]{.underline}
[also]{.underline} [Yakima]{.underline}, 1998 WL 173205, at \* 2; 16
Wright, Miller & Cooper, [Federal Practice and Procedure]{.underline}, §
3930 (1996). This factor is linked to whether an issue of law is
"controlling" in that the Court should consider the effect of a reversal
by the court of appeals on the management of the case.
[Mateo]{.underline}, 805 F. Supp. at 800; [Yakima]{.underline}, 1998 WL
173205, at \*2[; Napa Community Redevelopment Agency v. Continental
Insurance Co.]{.underline}, 1995 WL 714363, \*3 (N.D. Cal. 1995) (copy
attached as Exhibit B). In the present case, this Court should also deny
certification of AMC's interlocutory appeal because it cannot
demonstrate that an immediate appeal would materially advance ultimate
termination of the litigation. On the contrary, such certification would
only cause further delay. As the [Regal]{.underline} case is already on
appeal and, in accordance with the General Orders of that court,
[see]{.underline} discussion [supra]{.underline}, the Ninth Circuit's
usual procedure would be to first rule in [Regal]{.underline} before it
can decide the § 1292(b) appeal, the AMC § 1292(b) appeal would not be
determined by the Ninth Circuit for many months, even assuming the Ninth
Circuit certified the issue, which is extremely unlikely. Even if the
§1292(b) appeal were decided by the Ninth Circuit, the case would then
be remanded back to this Court for final disposition when either party
may seek Ninth Circuit appeal.

Also, AMC erroneously argues that if the Ninth Circuit adopted AMC's
interpretation of the line-of-sight issue, it would obviate the need for
determining whether each of AMC's theaters violates the ADA and how to
bring each the theater into compliance.[^4] AMC Cert. Mot. 10. AMC
conveniently ignores the fact that if the United States prevails, in
whole or in part, in its separate summary judgment motion on non
line-of-sight violations at AMC theaters, bringing each theater complex
into compliance with the ADA must still be decided.

In addition, even if the Ninth Circuit's decision in [Regal]{.underline}
was not hovering on the horizon, certification of issues for appeal at
this point in the litigation would unduly delay termination of this
case. This case, which has been pending for four years, is entering the
home stretch. Extensive discovery has been conducted and completed,
expert reports have been submitted, most expert depositions have been
conducted. [^5] The issues to be litigated in this case have matured and
evolved and once this Court rules on the United States' Partial Motion
for Summary Judgment on Non-line of Sight Issues to determine liability
on non line-of-sight issues, the remedies phase may begin. Interlocutory
appeal of some or all of the issues addressed in the Court's Order of
November 20, 2002 would needlessly and unnecessarily delay the ultimate
termination of this case. Once all issues have been resolved in this
Court, an appeal of final judgment is likely.

Also, the concomitant delay[^6] engendered by piecemeal appeals would
not be fair to those individuals with disabilities upon whose behalf the
United States has brought this suit as it would ultimately postpone or
hamper meaningful efforts both to develop and to implement remedial
relief in AMC's stadium-style theaters across the country and to award
damages to those individual complainants for whom damages are sought in
the Complaint. [See]{.underline} [In re Related Asbestos
Cases]{.underline}, 23 B.R. 523, 532 (N.D. Cal. 1982) (Court refused to
certify an order interpreting the meaning of a federal statute, finding
that "an immediate appeal of the \[11 U.S.C.\] Section 362 issue will
not materially advance the ultimate termination of the litigation, but
instead will merely delay the litigation and potential settlements and,
more importantly, will further jeopardize the interests of the injured
plaintiffs").

**[CONCLUSION]{.underline}**

For the foregoing reasons, AMC has failed to demonstrate that the
line-of-sight issue for which it seeks interlocutory appeal constitutes
the kind of exceptional and unusual situation § 1292(b) was designed to
address. As such, AMC's motion for certification should be denied.

DATED: January 7, 2002.

Respectfully submitted,

> RALPH F. BOYD, JR.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> PHILIP L. BREEN, Special Legal Counsel
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> Disability Rights Section
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> GRETCHEN E. JACOBS
>
> PHYLLIS M. COHEN
>
> KATHLEEN S. DEVINE
>
> DOV LUTZKER
>
> KRISTAN C. MAYER
>
> JOSEPH C. RUSSO
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Counsel for Plaintiff
>
> United States of America
>
> Tel: 202 307-0480

**[CERTIFICATE OF SERVICE]{.underline}**

I hereby certify that on this 7th day of January, 2003, true and correct
copies of **Plaintiff United States' Opposition to Defendants' Motion to
Certify for Interlocutory Appeal November 20, 2002 Order** were
delivered by Federal Express, postage pre-paid, on the following
parties:

Gregory F. Hurley

Kutak Rock LLP

Suite 1100

18201 Von Karmen Ave

Irvine, CA 92612-1077

Robert J. Harrop

Lathrop & Gage L.C.

Suite 2500

2345 Grand Boulevard

Kansas City, MO 64108-2684

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Kathleen S. Devine

[^1]:
    > ^?^ Also, the Court's Order of November 20, 2002 on line-of-sight
    > violations does not address theater auditoria with over 300 seats
    > nor does it address auditoria in which all seats are on risers, so
    > liability is unresolved on those issues as well.

[^2]:
    > ^?^ Indeed, according to statistics from the Court of Appeals for
    > the Ninth Circuit, only 2 applications for § 1292(b) appeal were
    > filed per judgeship in 2002 (the most recent year for which
    > statistics were available). [See]{.underline} Appellate Judicial
    > Statistics Caseload Report, [available at]{.underline}
    > http://www.uscourts.gov/cgi-bin/csma2001.p1.

[^3]:
    > ^?^AMC cites [Kuehner v. Dickinson & Co]{.underline}, 84 F. 3d 316
    > (9^th^ Cir. 1996) for support of its proposition that a question
    > may be deemed controlling even if reversal of the district court's
    > order would not terminate the case. However, in
    > [Kuehner]{.underline}, a suit alleging violations of Fair Labor
    > Standards Act and wrongful discharge under California tort law,
    > the plaintiff sought interlocutory appeal of an order staying the
    > proceedings pending arbitration of her claims. The Ninth Circuit,
    > in accepting the appeal, held that an order may involve a
    > controlling question of law if it could cause needless expense and
    > delay of litigating the entire case in a forum that had no power
    > to decide the matter. [Kuehner]{.underline}, 84 F. 2d at 319. In
    > the instant action, however, AMC raises no such fundamental
    > jurisdictional claims sufficient to elevate the questions for
    > interlocutory appeal, whatever they may be, to the status of a
    > controlling question of law.

    AMC also cites [Steering Committee v. U.S.]{.underline}, 6 F.3d. 572
    (9^th^ Cir. 1993), to support its claim that certification is
    warranted. However, in [Steering Committee]{.underline}, the Ninth
    Circuit, in accepting the case for interlocutory appeal, found
    persuasive the fact that in a bifurcated case, all liability issues
    had been resolved by the lower court prior to the United States
    request for interlocutory appeal. [Steering Committee]{.underline},
    6 F.3d at 574-75. In the present case, critical claims in the United
    States' Complaint regarding many non-line of sight violations
    remain, so interlocutory appeal clearly is inappropriate.

[^4]:
    > ^?^*Assuming arguendo* that the only question for which AMC was
    > seeking interlocutory review was the proper interpretation of
    > Standard 4.33.3, that that issue were not presently before the
    > Ninth Circuit awaiting decision, and that the Order from which
    > certification is being sought were not one for *partial* summary
    > judgment, it is not enough to simply argue that if this Court's
    > order regarding the appropriate interpretation of 4.33.3 were
    > reversed, that could conclude the case. Under such a theory, all
    > denials of summary judgment and other potentially dispositive
    > interlocutory orders would be automatically appealable. While this
    > argument may provide additional support for certification in some
    > cases, it is insufficient to carry the entire weight of the
    > certification requirement. [Chiron Corp. v. Abbott
    > Laboratories]{.underline}, 1996 WL 15758, \*3 (N.D. Cal. 1996)
    > (copy attached as Exhibit C).

[^5]:
    > ^?^ While all of the experts for the United States have been
    > deposed by AMC, AMC has not yet permitted the United States to
    > depose AMC's experts. [See]{.underline} Joint Stip. Re: Pl. U.S.'
    > Motion to Compel Docs. and Supp. Reports Concerning AMC
    > Defendants' Trial Experts; Motion for Sanctions p. 16, lines
    > 25-28, n. 7 (filed Dec. 30, 2002) (Docket \# 412); Supp. Memo in
    > Support of Pl. U.S.' Motion to Compel Documents and Supplemental
    > Reports, p.3, lines 24-28, n.1 (filed Jan. 6, 2002).

[^6]:
    > ^?^ According to statistics maintained by the Administrative
    > Office of the U.S. Courts, the median time frame from filing of
    > notice of appeal to disposition in the Ninth Circuit is 15.8
    > months. [See]{.underline} Appellate Judicial Statistics Caseload
    > Report, [available at]{.underline}
    > http://www.uscourts.gov/cgi-bin/csma2001.p1.