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Lindenberg v. Jackson National Life Insurance Co.

United States Court of Appeals, Sixth Circuit

March 28, 2019

Tamarin Lindenberg, individually and as natural guardian of her minor children ZTL and SML, Plaintiff-Appellee/Cross-Appellant,
Jackson National Life Insurance Company, Defendant-Appellant/Cross-Appellee, State of Tennessee, Intervenor-Appellee.

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:13-cv-02657-Jon Phipps McCalla, District Judge.


          Joseph Ahillen, OFFICE OF THE ATTORNEY GENERAL OF TENNESSEE, Nashville, Tennessee, for Intervenor Appellee.

          Daniel W.Van Horn, Gadson W. Perry, BUTLER SNOW LLP, Memphis, Tennessee, for Appellant/Cross-Appellee.


          Molly Glover, Charles S. Higgins, BURCH, PORTER & JOHNSON, PLLC, Memphis, Tennessee, for Appellee/Cross-Appellant.

         ON BRIEF:

          Cary Silverman, SHOOK, HARDY & BACON L.L.P., Washington, D.C., for Amicus Curiae.

          Before: CLAY, STRANCH, and LARSEN, Circuit Judges.

          CLAY, J. (pp. 3-5), delivered a separate opinion concurring in the denial of rehearing en banc in which STRANCH, J., joined. BUSH, J. (pp. 6-15), delivered a separate opinion dissenting from the denial of rehearing en banc. NALBANDIAN, J. (pp. 16-18), delivered a separate statement regarding the denial of rehearing en banc in which THAPAR, BUSH, and LARSEN, JJ., joined.


         The court received petitions for rehearing en banc. The original panel has reviewed the petitions for rehearing and concludes that the issues raised in the petitions were fully considered upon the original submission and decision. The petitions then were circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

         Therefore, the petitions are denied.


          CLAY, Circuit Judge, concurring in the denial of rehearing en banc.

         It is incredulous that some of my colleagues would have this Court establish rigid, mechanical, and unflinching criteria for certification to state courts in lieu of our established practice of trusting panels to exercise their experience, discretion, and best judgment to determine when certification is appropriate.

         The Supreme Court has recognized that the decision of whether to certify "rests in the sound discretion of the federal court." Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). This approach recognizes that federal courts weigh numerous competing considerations when determining whether to certify. Of course, certification "is most appropriate when the question is new and state law is unsettled." Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995). But federal courts may also consider factors such as comity, cooperative federalism, and judicial economy. See Rutherford v. Columbia Gas, 575 F.3d 616, 628 (6th Cir. 2009) (Clay, J., dissenting). These multifarious considerations cannot be reduced to a checklist or simple mathematical formula, as my colleagues would have us believe.

         Certainly, the decision concerning whether to certify is not always straightforward. Resolving requests for certification often entails a difficult analysis of several competing considerations. But the mere fact that ceding our discretion would be easier, and perhaps even more expedient, is not an adequate reason for us to shirk from our judicial obligations. Rather than adopt a rigid formula that answers the question for us of when to certify, we should trust ourselves and our own judgment, and that of our capable colleagues on this Court, to exercise our discretion wisely after considering the unique circumstances and considerations that may be present in a given case.

         On the surface, my colleagues purport to take issue with this Court's procedure for certification. But, on a more fundamental level, they appear to challenge this Court's very jurisdiction to decide matters of state law in diversity cases, a power that emanates from Article III and which Congress has codified in 28 U.S.C. § 1332. It is an "undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds." New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 359 (1989). Federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them," Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976), and "have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given," Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). Thus, when diversity jurisdiction is properly invoked, federal courts have a "duty . . . to decide questions of state law whenever necessary to the rendition of a judgment." Meredith v. City of Winter Haven, 320 U.S. 228, 234 (1943); see Burgess v. Seligman, 107 U.S. 20, 33 (1883) (explaining that "[t]he federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, and not subordinate to, that of the state courts"). And "it is still the duty of the federal courts, where the state law supplies the rule of decision, to ascertain and apply that law even though it has not been expounded by the highest court of the State." Fid. Union Tr. Co. v. Field, 311 U.S. 169, 177 (1940) (call number omitted).

         To the extent that my colleagues wish to circumvent Congress's directive that we decide state law issues in diversity cases, they ignore their constitutional obligation to exercise the jurisdiction conferred by Congress. To the extent that they would create new rules to infringe upon jurisdictional prerequisites for referral of cases to state courts, they engage in judicial activism in contravention of Congress's prerogative to define the jurisdiction of federal courts. Even if they doubt the wisdom of the scope of federal court jurisdiction as it currently stands, that does not justify their oblique attempt to circumscribe federal jurisdiction by impeding or eliminating our discretion to decide when certification is appropriate.

         Moreover, my colleagues' concerns are unfounded. When this Court sits in diversity, we apply state law, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), and therefore act as "only another court of the State." Guar. Tr. Co. v. York, 326 U.S. 99, 108 (1945). When required to do so, we predict state law, but we do not devise it. In many instances, federal courts are more than capable of correctly deciding state law issues without certifying them to the state's highest court. In those cases, certification would serve little purpose other than to needlessly delay resolution of the ultimate issues in the case. Some state courts frequently take an extended period of time to decide whether to address certified questions, only to ultimately reject the certification request and refuse to answer the questions for which we have sought guidance. I am personally aware of multiple instances in which state courts in our circuit have sat on certification requests for up to a year or more, only to deny the requests without taking any action. Of course, certification may be warranted in some cases. But we should not create a mechanical rule that would require us to certify issues in circumstances where our sound discretion and judicial experience would not direct us to seek certification.

         Finally, in arguing for certification here, my colleagues have taken my statements from Rutherford, 575 F.3d 616, out of context. In Rutherford, this Court faced the question of whether the equitable doctrines of estoppel, laches, and waiver applied to an express easement under Ohio law. Id. at 618. The majority declined to certify the question, holding that the outcome was "largely controlled," id., by our recent decision in Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618 (6th Cir. 2008). I dissented, arguing that stare decisis did not preclude certification because Andrews "relied almost exclusively" on a single intermediate court case that was likely wrongly decided, and because Andrews failed to discuss, much less distinguish, several cases from the Ohio Supreme Court that indicated that body would likely reach the opposite conclusion as the Andrews panel. Rutherford, 575 F.3d at 620-21. (Clay, J., dissenting). Rutherford is the inverse of this case. There, the panel privileged federal precedent over state decisions. Here, the panel stands accused of doing the opposite.

         Ultimately, this panel properly considered the circumstances of the case. A jury found in Plaintiff's favor in December 2014. Three and a half years later, when this appeal was briefed and argued, neither party moved for certification. The State as intervenor did so only in a footnote, and only with regard to "the constitutional questions." But of course, the district court had already certified the constitutional questions to the Tennessee Supreme Court. That body, after waiting approximately seven ...

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