                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                              ________________________                U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            March 27, 2007
                                     No. 06-13923                        THOMAS K. KAHN
                               ________________________                      CLERK

                         D. C. Docket No. 03-00758-CV-HTW-1

GLENN SIMPSON,

                                                                           Plaintiff-Appellee,

versus


CAROLINA BUILDERS CORPORATION,
d.b.a. Stock Building Supply,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                      (March 27, 2007)

Before HULL and MARCUS, Circuit Judges, and BARZILAY,* Judge.

PER CURIAM:


         *
        Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting
by designation.
      After thorough review and having considered oral argument, we conclude

that this Court has improvidently granted leave to pursue this interlocutory appeal

under 28 U.S.C. § 1292(b). Under 28 U.S.C. § 1292(b), appeal of a non-final order

may be permitted when the district court certifies in writing that its order “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 termination of the litigation.” 28 U.S.C. § 1292(b). Three factors are

relevant in deciding whether an order merits interlocutory review under § 1292(b):

(1) whether the case presents a “controlling question of law”; (2) whether there is a

“substantial ground for difference of opinion”; and (3) whether the appeal will

“materially advance the ultimate termination of the litigation.” 28 U.S.C. 1292(b);

see McFarlin v. Conseco Servs., 381 F.3d 1251, 1257-59 (11th Cir. 2004).

      The district court certified one question pursuant to § 1292(b): whether the

plaintiff had a right to recover under quantum meruit. As we see it, this question

does not present a “controlling question of law.” We will not, therefore, as we

would otherwise be required to do in order to decide the merits of plaintiff’s

quantum meruit claim, “root[] through the record in search of the facts or of

genuine issues of fact.” McFarlin, 381 F.3d at 1258. Neither does this case present

a legal principle as to which there is a “substantial ground for difference of



                                          2
opinion.” The law of Georgia regarding quantum meruit is clear -- it is the

application of this law to the facts that is disputed here. Simply put, this appeal

does not meet the 28 U.S.C. § 1292(b) standard. Such appeals “were intended, and

should be reserved, for situations in which the court of appeals can rule on a pure,

controlling question of law without having to delve beyond the surface of the

record in order to determine the facts.” McFarlin, 381 F.3d at 1259.

      In the Eleventh Circuit, a motions panel makes the initial decision to permit

an interlocutory appeal pursuant to § 1292(b). As with all motions panel rulings,

however, this motion is subject to revocation by the merits panel designated to

decide the case. 11th Cir. Rule 27-1(g); see McFarlin, 381 F.3d at 1253.

Accordingly, we dismiss this appeal without prejudice and remand the case to the

district court for further proceedings.

      APPEAL DISMISSED.




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