UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Hypertherm, Inc.

v. Civil No. 05-cv-373-JD

Opinion No. 2008 DNH 080

American Torch Tip Company

O R D E R

On September 11, 2007, the court issued an order granting in

part and denying in part Hypertherm, Inc.’s motion to dismiss and

for summary judgment on American Torch Tip Company’s (“ATTC”)

counterclaims. Neither party moved for reconsideration of that

order. Five months later, ATTC filed a motion to certify

questions for an interlocutory appeal, pursuant to 28 U.S.C. §

1292(b), of that part of the September 11 order granting summary

judgment on ATTC’s illegal tying counterclaim. Hypertherm

objects to the motion. ATTC filed a reply, and Hypertherm has

filed a surreply.

 To succeed on a motion to certify questions for an

interlocutory appeal under § 1292(b), the moving party must

convince the district court that the order “involves a

controlling question of law,” that “there is a substantial ground

for difference of opinion” as to that legal issue, and “that an

immediate appeal from the order may materially advance the

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ultimate termination of the litigation.” § 1292(b). Although §

1292(b) does not impose a deadline within which a party must seek

an interlocutory appeal, courts have concluded that motions for

certification filed several months after the interlocutory order

was issued, are untimely. See Scanlon v. M.V. Super Servant 3,

429 F.3d 6, 8 (1st Cir. 2005) (district court denied as untimely

motion to amend to certify an interlocutory appeal filed more

than four months after order issued); Wolfchild v. United States,

78 Fed. Cl. 472, 481 (Ct. Fed. Cl. 2007) (motions to amend to

certify for interlocutory appeal are untimely when filed more

than three months after order was filed).

In this case, ATTC’s motion to amend the September 11 order

to certify questions for interlocutory appeal is untimely, having

been filed five months after that order and without any

explanation for the delay. Without addressing any reason for the

delay, ATTC contends that its motion would not cause prejudice,

because “the antitrust case is stayed.” Reply at 1. In fact,

only discovery on the counterclaims was stayed pending resolution

of Hypertherm’s motion to dismiss, which was resolved by the

court’s order issued on September 11, 2007. Although the

counterclaims were bifurcated from the infringement claims, no

additional stay was imposed by the court.

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Even if the motion for an interlocutory appeal were timely,

however, ATTC has not shown that summary judgment was granted

based on a legal question for which a substantial difference of

opinion exists. Instead, it appears that a difference of opinion

exists as to whether ATTC offered sufficient evidence to show a

material factual dispute to require a trial on its tying claim. 

In addition, ATTC’s tying counterclaim is only one of its

multiple counterclaims and does not affect Hypertherm’s patent

infringement claims against ATTC. Therefore, an interlocutory

appeal of summary judgment on the tying claim would not

“materially advance the ultimate termination of the litigation”

in this case. § 1292(b).

In the order that bifurcated the counterclaims from the

infringement claims, issued on February 1, 2007, the court stayed

discovery on the counterclaims pending resolution of Hypertherm’s

motion to dismiss, or in the alternative for summary judgment on,

ATTC’s counterclaims, except to the limited extent necessary to

address the motion. See Doc. no. 72. The parties then filed a

discovery plan to address the discovery allowed in that order,

which was approved on March 14, 2007. See Doc. no. 85. 

Hypertherm’s motion to dismiss or for summary judgment was

resolved by the order issued on September 11, 2007. See Doc. No.

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129. Therefore, a discovery plan is needed for litigation of the

counterclaims. 

The deadline for ATTC’s response to Hypertherm’s motion for

partial summary judgment was stayed until thirty days after an

order resolving claim construction. With respect to the

infringement claims, on June 13, 2007, the court ordered that the

parties’ motions for summary judgment would be due twenty days

after a final order on claim construction. The order granting in

part and denying in part ATTC’s motion for reconsideration of

claim construction issued on March 20, 2008. 

Conclusion

For the foregoing reasons, the defendant’s motion to certify

questions for interlocutory appeal (document no. 154) is denied. 

On or before May 1, 2008, the parties shall file a joint

discovery plan for ATTC’s counterclaims.

The parties’ motions for summary judgment on the

infringement claims shall be filed on or before May 30, 2008. 

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ATTC shall file its response to Hypertherm’s pending motion for

partial summary judgment (document no. 133) on or before May 19,

2008.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 15, 2008

cc: Jacob K. Baron, Esquire

Steven M. Bauer, Esquire

Seth M. Cannon, Esquire

Joseph A. Capraro, Jr., Esquire

Jeffery M. Cross, Esquire

Joseph T. Dattilo, Esquire

Jamie N. Hage, Esquire

Rhett R. Krulla, Esquire

Jonathan A. Lax, Esquire

Richard C. Nelson, Esquire

W. Scott O'Connell, Esquire

Jeremy P. Oczek, Esquire

John M. Skeriotis, Esquire

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