Florida East Coast Railway Co.

220 Ct. Cl. 644, 1979 WL 10185

• Court: United States Court of Claims
• Decided: April 27, 1979
• Docket: No. 532-69
• Status: Published

Opinion

On April 27, 1979 the court entered the following order:

Before Friedman, Chief Judge, Davis and Kashiwa, Judges.

This case is before the court on defendant’s motion for prompt review of the trial judge’s March 15, 1979, order refusing to reconsider his March 9, 1979, order denying defendant’s motion for leave to file out of time its objections to plaintiffs requested findings of fact. Our review of this issue is pursuant to Rule 53(c)(2)(ii), for the trial judge did not certify the question for prompt review. After careful consideration of the motion and briefs filed, but without oral argument, we deny defendant’s motion.

Rule 53(c)(2)(ii) establishes a strict standard for interlocutory review of a trial judge’s procedural order. To avoid interrupting the course of litigation in the Trial Division for piecemeal appeals, the rule requires the aggrieved party to make a "showing of extraordinary circumstances whereby further proceedings pursuant to the said order would irreparably injure the complaining party or occasion a manifest waste of the resources of the court or of the parties.”

Defendant has made no such showing of irreparable injury here. Defendant was granted lengthy extensions of time to complete its post-trial brief and was permitted leave to file its proposed findings of fact out of time. Moreover, the trial judge has specifically reserved to defendant the right to except to any of the trial judge’s findings of fact and to challenge any finding as clearly erroneous in the event of an exception under Rule 143(a). Under these circumstances, we do not believe defendant will suffer any irreparable injury as a result of the trial judge’s order.

it is therefore ordered that defendant’s request for prompt review be and hereby is denied, without prejudice. The case is remanded to the Trial Division for further proceedings.