wie bereits von Stay in Post
#23467 erwähnt, hier noch einmal aus dem Ami Forum nebst Erläuterung:
www.boardpost.net/forum/index.php?topic=3983.msg40911#msg40911Zitat Florin:
Now for an update:
I just checked the docket again [WMI LIQUIDATING TRUST V. XL SPECIALTY INSURANCE CO],
the insurers/defendants filed an application for INTERLOCUTORY APPEAL
12-AUG-2013
03:23 PM APP CERT OF INTERLOCUTORY APPL MACAULEY, THOMAS G
Entry: APPLICATION FOR CERT OF INTERLOCUTORY APPEAL DATE DOCKETED: AUGUST 13, 2013 DEFENDANTS' APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL EXHIBITS 1-10 - DEFENDANTS' APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL ORDER GRANTING LEAVE TO APPEAL FROM INTERLOCUTORY ORDER {PROPOSED} - DEFENDANTS' APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL CERTIFICATE OF SERVICE - DEFENDANTS' APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL ACCEPTED BY: NT TRANSACTION ID: 53687167
In other words, it looks like there is no settlement, the insurers want to appeal the ruling/denial of the Motion to Dismiss.
From what I read and understand, because it is an INTERLOCUTORY APPEAL, it should not hold up the proceedings while the appeal takes place. In other words, WMILT vs. the insurers can proceed to trial, like I mentioned in the previous post.
We'll see what actually happens, I just know for sure that we need to deal with this appeal and hopefully be successful. All of this could take a while longer, so I doubt there is a resolution anytime soon.
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Zitat T1215s:
An interlocutory appeal (or interim appeal), in the law of civil procedure, is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the decisions made by the judge during that trial. "Although the general rule requires finality in order for a matter to be appealable, there are exceptions arising principally from court rules that permit appeal of interlocutory matters under specific circumstances."[1]
Many jurisdictions make an exception for decisions that are particularly prejudicial to the rights of one of the parties. For example, if a party is asserting some form of immunity from suit, or is claiming that the court completely lacks personal jurisdiction over them, then it is recognized that being forced to wait for the conclusion of the trial would violate their right not to be subjected to a trial at all.
Federal courts
The Supreme Court of the United States delineated the test for the availability of interlocutory appeals, called the collateral order doctrine, for United States federal courts in the case of Lauro Lines s.r.l. v. Chasser, 490 U.S. 495 (1989), holding that under the relevant statute (28 U.S.C. § 1291) such an appeal would be permitted only if:
1.the outcome of the case would be conclusively determined by the issue;
2.the matter appealed was collateral to the merits; and
3.the matter was effectively unreviewable if immediate appeal were not allowed.
The Supreme Court created the test in the case Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), where it was applied to a requirement of bond to be posted in certain stockholders derivative actions by plaintiffs, in anticipation of being liable for defendant's attorney's fees. Since the substantial deterrent effect of the statute would be meaningless if not enforceable at the outset of litigation, but did not touch on the merits of plaintiff's claim, the Court allowed interlocutory appeal from the trial court's decision. 337 U.S. at 546-47. The doctrine was restricted in Digital Equipment Corp. v. Desktop Direct Inc., 511 U.S. 863 (1994), which added an explicit importance criterion to the test for interlocutory appeals, holding that relief on a claim of immunity from suit because of a previous settlement agreement could not come through interlocutory appeal. The Supreme Court stated that the only matters of sufficient importance to merit a collateral appeal were "those originating in the Constitution or statutes". 511 U.S. at 879.
Several U.S. statutes directly confer the right to interlocutory appeals, including appeals from orders denying arbitration, 9 U.S.C. § 16, and some judicial actions against the debtor upon filing bankruptcy proceedings, 11 U.S.C. § 362(a). There is a major split in the United States courts of appeals as to whether a stay of proceedings should issue in the district court while interlocutory appeals on the arbitrability of disputes are decided. Compare Bradford-Scott Data Corp., Inc. v. Physician Computer Network, 128 F.3d 504 (7th Cir. 1997), and Britton v. Co-op Banking Group, 916 F.2d 1405 (9th Cir. 1990). An interlocutory appeal under the collateral order doctrine usually merits a stay of proceedings while the appeal is being decided. Currently, the Second and Ninth Circuits have refused to stay proceedings in the district court while an arbitration issue is pending [See, Motorola Credit Corp. v. Uzan, 388, F.3d 39, 53-4 (2d Cir. 2004; Britton v. Co-Op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990)]. The Seventh, Tenth and Eleventh Circuit courts conversely hold that a non-frivolous appeal warrants a stay of proceedings. See, Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d, 504, 506 (7th Cir. 1997); Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251-2 (11th Cir. 2004); McCauley et al. v. Halliburton Energy Services, Inc., 161 Fed. Appx. 760 (10th Cir. 2005).
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PEACE N UNDERSTANDING-Ts
Zitatende
MfG.L:)
Alles nur meine pers. Meinung, kein Kauf- oder Verkaufs-Empfehlung!
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