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Schall v. Suzuki Motor of America, Inc.

United States District Court, W.D. Kentucky, Owensboro Division

July 11, 2017

DEREK SCHALL PLAINTIFF
v.
SUZUKI MOTOR OF AMERICA, INC., SUZUKI MOTOR CORPORATION, and NISSIN KOGYO CO., LTD. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE.

         This matter is before the Court on Defendant Nissin Kogyo Co., Ltd.'s motion to certify the Court's May 11, 2017 Memorandum Opinion and Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (DN 117.) Fully briefed, this matter is ripe for decision. For the following reasons, the motion is DENIED.

         I. Background

         Plaintiff Derek Schall was injured in a motorcycle accident on July 19, 2013, in Daviess County, Kentucky. (Pl.'s Am. Compl. [DN 5] ¶ 39.) He alleges that the accident was caused by defects in the front brake master cylinder on the motorcycle, a 2007 Suzuki GSX-R600. (Id.) He has brought an action against Suzuki Motor Corporation (“SMC”), the manufacturer of the motorcycle; Suzuki Motor of America, Inc. (“SMA”), the importer of the motorcycle; and Nissin Kogyo Co., Ltd. (“Nissin”), the manufacturer of the front brake master cylinder, alleging strict products liability and negligence. (Id. at ¶ 41-52.)

         Schall filed his amended complaint on July 18, 2014. (Id.) Nissin originally filed a motion to dismiss due to insufficient service of process and a lack of personal jurisdiction. (DN 17.) However, after Schall served Nissin via an international service processor, Nissin withdrew its motion to dismiss. (DN 41.) The parties then spent over two years engaged in discovery before Nissin filed a renewed motion to dismiss for lack of personal jurisdiction. (DN 110.) Schall opposed the motion on the grounds that Nissin had forfeited the defense by failing to raise it in a timely fashion. (DN 111.) The Court agreed that Nissin had forfeited the defense and denied the motion. (DN 116.) Nissin now seeks to immediately appeal the Court's decision and stay the case pending an appeal. (DN 117.)

         II. Discussion

         Nissin requests that this Court certify its ruling on personal jurisdiction for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). That statute states:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . .

         The Sixth Circuit has stated that § 1292(b) “confer[s] on district courts first line discretion to allow interlocutory appeals.” DRFP, LLC v. Republica Bolivariana de Venezuela, 945 F.Supp.2d 890, 917 (S.D. Ohio 2013) (citing Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496, 504 (6th Cir. 2011)). But this statute should only be used sparingly and in exceptional cases, DRFP, 945 F.Supp.2d at 918, since, as “[a]ttractive as it may be to refer difficult matters to a higher court for advance decision, such a course of action is contrary to our system of jurisprudence.” United States ex rel. Elliot v. Brickman Grp. Ltd., LLC, 845 F.Supp.2d 858, 863 (S.D. Ohio 2012) (citations omitted).

         Pursuant to § 1292(b), Nissin must make three different showings for this Court to certify its prior order for immediate appeal: “(1) the order [must] involve[ ] a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an immediate appeal may materially advance the ultimate termination of the litigation.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). As to the first showing,

[t]he Sixth Circuit has . . . set a low bar for a determination that a question of law is “controlling” in the context of a motion for certification under § 1292(b). “All that must be shown in order for a question to be ‘controlling' is that resolution of the issue on appeal could materially affect the outcome of the litigation in the district court.” Eagan v. CSX Transportation, Inc., 294 F.Supp.2d 911, 915 (E.D. Mich. 2003) . . .

Newsome v. Young Supply Co., 873 F.Supp.2d 872, 875-76 (E.D. Mich. 2012). Here, Nissin has met this standard. First, the issue that it seeks to appeal is a question of law, not fact; it challenges this Court's use of the standard articulated in King v. Taylor, 694 F.3d 650, 659 (6th Cir. 2012), for determining whether a Rule 12 defense has been waived, as opposed to the standard stated in Gerber v. Riordan, 649 F.3d 514, 519 (6th Cir. 2011). Nissin does not challenge the Court's factual findings that were evaluated under the standard in King but rather whether the correct standard was applied, making the issue a purely legal one. And the issue of whether a personal jurisdiction defense has been forfeited is controlling, as the Court would be required to dismiss all claims against Nissin if it had presented a timely and meritorious motion to dismiss. Thus, the resolution of the issue could materially affect the outcome of the litigation. As such, Nissin has made the requisite showing.

         Next, Nissin must demonstrate that a substantial ground for difference of opinion exists regarding the correctness of the decision. A “substantial ground for difference of opinion” can exist in four circumstances:

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 difficult and of first impression; (3) a difference of opinion exists within the ...

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