Afran Transport Co. v. National Maritime Union , 177 F. Supp. 610 ( 1959 )

FREDERICK van PELT BRYAN, District Judge.

Defendants’ motion for reargument is granted.

On reargument I have considered the defendants’ contentions that their motion for summary judgment, which I denied in my decision of February 20, 1959, should have been granted. It is the burden of the party who moves for summary judgment to establish that there are no material issues of fact which require a trial. I am not persuaded that the defendants have met that burden.

Nor am I persuaded that my order denying summary judgment “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 determination of the litigation” within the meaning of 28 U.S.C. § 1292(b). The view of the Court of Appeals of this circuit as to the proper basis on which motions for summary judgment should be determined (see Arnstein v. Porter, 2 Cir., 154 F.2d 464; Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130) makes it plain to me that the narrow question as to whether there are any material issues of fact to be tried in this case does not present such “a controlling question of law” as the statute contemplates should be certified for interlocutory appeal.

On reargument I adhere to my decision of February 20, 1959 denying defendants’ motion for summary judgment and deny defendants’ application for an order pursuant to 28 U.S.C. § 1292(b).

It is so ordered.