As we mentioned earlier this week, Judge Noreika issued another in a storied line of Memorandum Orders denying a request to certify an interlocutory appeal. The decision in Arbor Global Strategies LLC v. Xilinx, Inc., C.A. No. 19-1986-MN, D.I. 68 (D. Del. Oct. 30, 2020) was a fairly unremarkable denial, but it caused me to wonder just how rare it is to see one of these granted. So I checked.
As far back as DocketNavigator goes (which is apparently January 2008), I count 23 separate Delaware cases where a party has requested certification. Of those, only four have been granted, the most recent of which was in October 2018. Interestingly, Judge Stark was involved in 3 of the 4, granting the motions to certify in 2 and writing the R&R that since-retired Judge Farnan adopted in a third. Since-retired Judge Sleet wrote the last.
In short, it appears that Judge Stark is the only sitting Delaware Judge to have ever certified an opinion for interlocutory appeal. And even he only grants them 33% (3/9) of the time. Every sitting Article III Judge has denied at least one, as have Magistrates Fallon and Thynge.
To put it bluntly, one should not count on an interlocutory appeal being certified in Delaware.
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