United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of defendant CBS
Corporation (CBS) to amend its Order denying CBS' motion
to dismiss [Doc. #277], and grant certification of an
interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Plaintiff has not responded in opposition, and the time
permitted for doing so has expired.
was a civilian employee of the United States Navy from 1958
until 1964, in Boston, Massachusetts. [Doc. #1-1 at ¶
1]. He was also “employed with Kambien” from 1966
until 1969 and “employed with Polaroid” from 1969
until 1997, in Cambridge, Massachusetts. Id.
“During the course of [his] employment at [those]
locations . . ., during non-occupational work projects and/or
in other ways, [he] was exposed to and inhaled, ingested or
otherwise absorbed asbestos fibers and/or asbestiform fibers
emanating from certain products [he] was working with and
around[, ] which were manufactured, sold, distributed or
installed by the [d]efendants.” Id. ¶ 2.
Plaintiff alleges he was “first exposed to and inhaled,
ingested or otherwise absorbed asbestos fibers and/or
asbestiform fibers emanating from certain products [he]
worked with or around outside the State of Missouri . . .
.” Id. ¶ 3. The asbestos-containing
products at issue were allegedly manufactured, sold,
distributed or installed by the defendants. In 2012,
plaintiff was diagnosed with asbestosis. On September 15,
2015, he was diagnosed with “asbestos-related”
mesothelioma. Id. ¶ 4. Plaintiff alleges that
his illness was caused by exposure to the defendants'
complaint names seventy-eight defendants. Plaintiff contends
that defendants are “amenable to suit in the State of
Missouri by reason [of] having sold, distributed and/or
installed the aforementioned asbestos-containing products in
Missouri or by reason of having placed the same into the
stream of commerce for use in Missouri, and by reason of
having committed a tortious act against [p]laintiff in
Missouri.” Id. ¶ 7. Neither plaintiff nor
defendant CBS is a citizen of Missouri, and this litigation
concededly has no connection to Missouri.
CBS filed a motion to dismiss for lack of personal
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). Specifically
defendant argued that “CBS' contacts with Missouri
[do not] satisfy the demanding due process test imposed by
Daimler AG v. Bauman.” [Doc. #96-1]. Defendant
CBS further claimed that “Knowlton is not even
persuasive, much less controlling, as to the jurisdictional
effect . . . to be given Missouri's foreign corporation
registration requirements, ” and “Missouri law
does not allow for implied consent-based general jurisdiction
over CBS where such jurisdiction would otherwise be precluded
by due process.” Id. at 5 (internal formatting
omitted). The motion was denied. [Doc. #277].
seeks certification of an interlocutory appeal on the
question of whether CBS has consented to the general
jurisdiction of Missouri courts by complying with
Missouri's corporate registration statute (Mo. Rev. Stat
§§ 351.572, 351.586 (2014)), as held in
Knowlton v. Allied Van Lines, 900 F.2d 1196 (8th
1292(b) of Title 28 of the United States Code provides a
mechanism for a district court to grant an appeal on an
otherwise non-final order. In order to satisfy §
1292(b), a case must involve an issue that concerns
“(1) a controlling question of law as to which there is
(2) a substantial ground for difference of opinion and upon
which (3) a decision will materially advance the ultimate
outcome of the litigation.” Paschall v. Kansas City
Star Co., 605 F.2d 403, 406 (8th Cir. 1979). Imbedded in
these factors is a ripeness requirement. See Id.
This is because “[t]he purpose of section 1292(b) is
not to offer advisory opinions ‘rendered on hypotheses
which (evaporate) in the light of full factual
development.'” Id. (quoting Minnesota
v. United States Steel Corp., 438 F.2d 1380, 1384 (8th
Cir. 1971)). A district court must therefore ensure that
factual issues are sufficiently resolved before granting
certification. See S.B.L. v. Evans, 80 F.3d 307, 311
(8th Cir. 1996).
“the requirements of § 1292(b) are jurisdictional,
” and this “jurisdictional analysis is guided by
the policy embodied in the final judgment rule.”
White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994);
see also Lloyd's Acceptance Corp. v. Affiliated FM
Ins. Co., 557 F. App'x 618, 619 (8th Cir. 2014).
That is, it has “long been the policy of the courts to
discourage piece-meal appeals because most often such appeals
result in additional burdens on both the court and the
litigants” and accordingly, “permission to allow
interlocutory appeals should thus be granted sparingly and
with discrimination.” White, 43 F.3d at 376
(quoting Control Data Corp. v. Int'l Bus. Machs.
Corp., 421 F.2d 323, 325 (8th Cir. 1970)). The Eighth
Circuit has explained that “the legislative history of
subsection (b) of section 1292 . . . indicates that it was to
be used only in extraordinary cases where decision of an
interlocutory appeal might avoid protracted and expensive
litigation. It was not intended merely to provide review of
difficult rulings in hard cases.” United States
Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir.
1996)(per curiam) (cited with approval in Union Cty.,
Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th
Cir. 2008)). Indeed, those seeking an interlocutory appeal
have the “heavy burden” of demonstrating that a
case is “exceptional” and therefore merits
immediate appeal. White, 43 F.3d at 376; see
also Alchemy Advisors, LLC v. Cedarburg Pharm., Inc.,
No. 4:08-CV-1964-FRB, 2010 WL 56012 (E.D. Mo. Jan. 4, 2010).
CBS has failed to meet its burden in this case.
the first § 1292 factor, defendant CBS has shown the
existence of a controlling question of law. A controlling
question of law must be legal - one of fact or an issue not
within the district court's discretion. See
White, 43 F.3d at 376; see also E.E.O.C. v. Allstate
Ins. Co., No. 4:04-CV-01359-ERW, 2007 WL 38675, at *3
(E.D. Mo. Jan. 4, 2007). Here, the question concerns the
exercise of personal jurisdiction over defendant CBS in
accordance with Knowlton. Other courts in this
circuit have held that personal jurisdiction issues
constitute controlling questions of law. See, e.g.,
Remmes v. Int'l Flavors and Fragrances, Inc. 435
F.Supp.2d 936, 944 (N.D. Iowa 2006); Emerson Elec. Co. v.
Yeo, No. 4:12-CV-1578-JAR, 2013 WL 440578, at *4 (E.D.
Mo. Feb. 5, 2013); Terra Int'l, Inc. v. Miss. Chem.
Corp., 922 F.Supp. 1334, 1384 (N.D. Iowa 1996).
Similarly, in this case, personal jurisdiction constitutes a
controlling question of law. This is because compliance by
CBS with Missouri's foreign corporation registration
requirements is the “only basis for in personam
jurisdiction” over this defendant. See Remmes,
435 F.Supp.2d at 944. A question pertaining to jurisdiction
contrasts to discovery issues, which are only subject to
appellate review for abuse of discretion and “generally
will never involve a controlling question of law.”
White, 43 F.3d at 377; see also Jones v.
Clinton, 993 F.Supp. 1217, 1223 (E.D. Ark. 1998).
Conversely, the Eighth Circuit conducts a de novo
review of a district court's denial of a motion to
dismiss on the basis of personal jurisdiction. See
Northrup King Co. v. Compania Productora Semillas Algodoneras
Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995).
Personal jurisdiction issues are therefore non-discretionary
and are controlling questions of law.
respect to the second factor, defendant CBS has not shown
that there is a substantial ground for difference of opinion.
A mere dearth of cases does not establish a substantial
ground for difference of opinion. White v. Nix, 43
F.3d 374, 378 (8th Cir. 1994). “[I]dentification of
‘a sufficient number of conflicting and contradictory
opinions' would provide substantial ground for
disagreement.” Id. at 378 (quoting Oyster
v. Johns-Manville Corp., 568 F.Supp. 83, 88 (E.D. Pa.
1983)). Moreover, substantial ground for a difference of
opinion exists when “(1) the question is difficult,
novel and either a question on which there is little
precedent or one whose correct resolution is not
substantially guided by previous decisions; (2) the question
is one of first impression; (3) a difference of opinion
exists within the controlling circuit; or (4) the circuits
are split on the question.” Emerson Elec. Co.
v. Yeo, No. 12-CV-1578-JAR, 2013 WL 440578, *2 (E.D. Mo.
Feb. 5, 2013) (quoting Newsome v. Young Supply Co.,
873 F.Supp.2d 872, 876-77 (E.D. Mich. 2012)). To support its
request for certification here, defendant CBS argues that
“numerous courts have reached the opposite conclusion
from this Court.” Defendant only cites two cases
(Keely v. Pfizer Inc., No. 4:15-CV-00583, 2015 WL
3999488 (E.D. Mo. July 1, 2015) (holding Knowlton
was abrogated by Daimler and finding no personal
jurisdiction); Beard v. SmithKline Beecham Corp.,
No. 4:14-CV-1833-RLW, 2016 WL 1746113 (E.D. Mo. May 3, 2016))
in this circuit that reach a different conclusion from this
Court with regard to the application of Knowlton in
the post-Daimler era. See Oyster v.
Johns-Manville Corp., 568 F.Supp. 83, 88 (E.D. Pa. 1983)
(noting that a “[s]ingle case demonstrates that while
there may be grounds for difference of opinion, they are not,
however substantial.”), cited with approval in
White, 43 F.3d at 378. Further, defendant CBS has failed
to establish a true circuit split. Defendant cites one Second
Circuit case, a Delaware state court case, and two cases from
the federal district court in Delaware to establish a circuit
split. This is insufficient to establish a circuit split.
See Sunflower Redevelopment, LLC v. Illinois Union
Insurance Co., No. 4:15-CV-577-DGK, 2016 WL 1228659, at
*4 (W.D. Mo. March 28, 2016) (finding that three cases cited
from outside the circuit is not sufficient to establish a
substantial ground for difference of opinion). Accordingly,
defendant CBS has not identified a sufficient number of
contradictory opinions such that this Court is persuaded that
there is a substantial ground for difference of opinion.
respect to the third factor, defendant CBS has not
demonstrated that an immediate appeal may materially advance
the termination of the litigation. “When litigation
will be conducted in substantially the same manner”
regardless of the appellate court's decision, “the
appeal cannot be said to materially advance the ultimate
termination of the litigation.” White, 43 F.3d
at 378-79; cf. Simon v. G.D. Searle & Co., 816
F.2d 397 (8th Cir. 2012) (holding that interlocutory appeal
was proper where questions concerning the work product
doctrine could affect about forty consolidated cases).
Defendant CBS argues that an interlocutory appeal would
“serve the best interests of justice and judicial
economy.” However, “granting interlocutory appeal
now will only increase the likelihood ...