Patt v. Volkswagen Group of America, Inc.

Filing 66

ORDER on 61 Motion for Certification for Interlocutory Appeal. Defendant Audi's Motion to Amend Order on Motion to Dismiss to Include a Certification for Interlocutory Appeal is DENIED. Signed by Judge Beth Bloom on 11/13/2023. See attached document for full details. (apz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-cv-21585-BLOOM/Otazo-Reyes
RICHARD PATT,
Plaintiff,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC. d/b/a AUDIO OF AMERICA, INC.,
a Foreign corporation,
Defendant.
___________________________________/
ORDER ON MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL
THIS CAUSE is before the Court upon Defendant Audi AG’s (“Defendant Audi”) Motion
to Amend the Court’s August 15, 2023 Order to Include a Certification for Interlocutory Appeal,
ECF No. [61] (“Motion”). Plaintiff Richard Patt (“Plaintiff”) filed a Response in Opposition, ECF
No. [62], to which Defendant Audi filed a Reply, ECF No. [63]. The Court has reviewed the
Motion, all opposing and supporting submissions, the record in this case, the applicable law, and
is otherwise fully advised. For the reasons discussed below, Defendant Audi’s Motion is denied.
I. BACKGROUND
This action arises from injuries Plaintiff allegedly suffered on March 28, 2021, while
driving an Audi SUV in Miami, Florida. ECF No. [33] ¶ 11. Plaintiff leased the vehicle several
months prior from an Audi dealership in California. Id. ¶ 10. Plaintiff alleges that he was waiting
at a stoplight when his seatbelt tightened, pulled him back, crushed his chest, and caused him to
suffer a collapsed lung. Id. ¶ 12. Plaintiff claims that the cause of the seatbelt tightening was

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Defendant Audi’s “pre sense® rear technology,” which is designed to detect impending rear-end
collisions and initiate preventive measures to protect occupants from injury. Id. ¶¶ 13-16.
Plaintiff asserts one count of Strict Products Liability against Defendants Audi and
Volkswagen Group of America, Inc. (“VWGoA”) (Count I), and separate counts of Negligence
against Defendant Audi (Count II) and Defendant VWGoA (Count III). Defendant Audi filed its
Motion to Dismiss Amended Complaint, ECF No. [43], arguing that Plaintiff could not establish
personal jurisdiction over Defendant Audi because (1) Defendant Audi’s conduct does not fall
within the scope of Florida’s long-arm statute, and (2) Defendant Audi lacks “minimum contacts”
with Florida such that exercising personal jurisdiction over Defendant Audi would violate the Due
Process Clause of the Fourteenth Amendment. See generally ECF No. [43].
The Court thereafter issued an Order Denying Motion to Dismiss Amended Complaint,
ECF No. [57] (“Order”). The Court determined that exercising personal jurisdiction over
Defendant Audi was proper under the products liability prong of Florida’s long-arm statute. The
Court also found that exercising personal jurisdiction over Defendant Audi was consistent with
the Due Process Clause because Defendant Audi has sufficient minimum contacts with the Florida
market.
Shortly thereafter, on August 28, 2023, Defendant Audi filed its Motion for Interlocutory
Appeal, which requests that this Court certify the following questions for interlocutory appeal:
1. Whether § 48.193(1)(a)(6) of Florida’s long-arm statute “requires a causal
connection between a defendant’s contacts with Florida and the plaintiff’s injury as
a prerequisite for exercising specific jurisdiction[,]”; and
2. “[W]hether a court can consider the conduct of an independent U.S. distributor to
determine that the exercise of specific jurisdiction over a foreign manufacturer
comports with due process.”
Motion at 1-2.

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II. LEGAL STANDARD
Three elements are required to certify a question for interlocutory appeal pursuant to 28
U.S.C. § 1292(b):
(1) a controlling question of law;
(2) over which there is a substantial ground for difference of opinion among
courts; and
(3) the immediate resolution of the issue would materially advance the ultimate
termination of the litigation.
See 28 U.S.C. § 1292(b). Interlocutory appeals under § 1292(b) serve as a “rare exception” to the
general rule that final judgment must precede appellate review. McFarlin v. Canseco Servs., LLC,
381 F.3d 1251, 1264 (11th Cir. 2004). Further, the Court of Appeals for the Eleventh Circuit
considers liberal use of § 1292(b) to be bad policy, as it may promote piecemeal appeals. Id. at
1259. Accordingly, § 1292(b) certification is only proper “in exceptional cases where decision of
the appeal may avoid protracted and expensive litigation … where a question which would be
dispositive of the litigation is raised and there is serious doubt as to how it should be decided.” Id.
at 1256.
The first element requires a showing that the question involves a controlling question of
law. This element requires demonstrating the following:
A “controlling question of law” arises where the appellate court can rule on
a controlling question of pure law without having to search deep into the record in
order to discern the facts of the underlying case. See Allapattah Servs., Inc. v. Exxon
Corp., 333 F.3d 1248, 1252-53 (11th Cir. 2003). To meet the first element for
interlocutory appeal, the movant must demonstrate there is a question of law, and
it is controlling. See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th
Cir. 2004). A controlling question of law pertains to “the meaning of a statutory or
constitutional provision, regulation, or common law doctrine.” Id. at 1258. In other
words, a controlling question of law is an issue of “pure law” that can be decided
“quickly and cleanly without having to study the record.” Id. The question must
also “be stated at a high enough level of abstraction to lift the question out of the
details of the evidence or facts of a particular case and give it general relevance to
other cases in the same area of law.” Id. at 1259. By contrast, “[t]he antithesis of a
proper § 1292(b) appeal is one that turns on whether there is a genuine issue of fact

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or whether the district court properly applied settled law to the facts or evidence of
a particular case.” Id. at 1259.
Cont’l 332 Fund, LLC v. Albertelli, No. 2:17-cv-41-FtM-38MRM, 2018 WL 3656472, at *2 (M.D.
Fla. Aug. 2, 2018).
With respect to the second element under § 1292(b), where the appellate court is in
“complete and unequivocal” agreement with the district court, a “substantial ground for difference
of opinion” does not exist. McFarlin, 381 F.3d at 1258 (quoting Burrell v. Bd. of Trustees of Ga.
Military Coll., 970 F.2d 785, 788-89 (11th Cir. 1992)). Moreover, questions of first impression or
the absence of binding authority on an issue, without more, are insufficient to demonstrate a
substantial ground for difference of opinion. See In re Flor, 79 F.3d 281, 284 (2d Cir. 1996);
Williams v. Saxon Mortgage Co., No. CIV. A. 06-0799-WS-B, 2007 WL 4105126, at *2 (S.D.
Ala. Nov. 15, 2007) (citations omitted). Instead, the district court should measure the weight of
opposing arguments to the disputed ruling in deciding whether there is a “substantial ground for
dispute.” In re Flor, at 284.
The final requirement that the controlling question of law “may materially advance the
ultimate termination of the litigation” is a straightforward one. This inquiry simply requires an
examination of whether the “resolution of [the] controlling legal question would serve to avoid a
trial or otherwise substantially shorten the litigation.” McFarlin, 381 F.3d at 1259.
The Eleventh Circuit has “identifie[d] several principles to guide [courts] in when deciding
whether to exercise [their] discretion under § 1292(b) to allow for a rare interlocutory appeal.”
Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1336 (11th Cir. 2018) (citing
McFarlin, 381 F.3d at 1264).
In general, [courts] exercise [their] discretion only when (1) the appeal presents a
pure question of law, (2) the question is controlling of at least a substantial part of
the case, (3) the district court identifies the question in its order, (4) there are

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substantial grounds for differences of opinion on the question, and (5) resolution of
the question may reduce the amount of litigation necessary on remand.
Id. (citing McFarlin, 381 F.3d at 1264). “This standard is conjunctive, meaning that if any elements
are not satisfied, the Court must deny interlocutory review.” In re Yormak, No. 2:17-cv-73-FtM38, 2017 WL 2645601, at *2 (M.D. Fla. June 19, 2017) (citation omitted). Acknowledging the
profound hurdles that parties face in seeking interlocutory appeal, the Eleventh Circuit has
characterized this certification as a “high threshold,” and stated that “[m]ost interlocutory orders
do not meet this test.” OFS Fitel, LLC, 549 F.3d at 1359. Ultimately, “§ 1292(b) certification is
wholly discretionary with both the district court and [the Court of Appeals].” Id. at 1358.
III. DISCUSSION
In its Motion, Defendant Audi requests that the following questions be certified for
interlocutory appeal:
1. Whether § 48.193(1)(a)6 of Florida’s long-arm statute “requires a causal
connection between a defendant’s contacts with Florida and the plaintiff’s injury as
a prerequisite for exercising specific jurisdiction[,]”; and
2. “[W]hether a court can consider the conduct of an independent U.S. distributor to
determine that the exercise of specific jurisdiction over a foreign manufacturer
comports with due process.”
Motion at 1-2. The Court considers each element under § 1292(b) with respect to the two questions
for certification posed by Defendant Audi.
A. § 48.193(1)(a)(6)’s Connexity Requirement
The Court first analyzes whether Defendant Audi’s first question meets § 1292(b)’s high
threshold.
i. Controlling Question of Law
Defendant Audi has demonstrated that whether Florida’s long-arm statute requires a casual
connection between a defendant’s contacts with Florida and the plaintiff’s injury for the purpose

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of establishing specific jurisdiction presents a controlling question of law. That question pertains
to the meaning of a statutory provision, namely, § 48.193(1)(a)(6) of Florida’s long-arm statute.
The question is also controlling, as finding that such a causal connection is required—and that
Defendant Audi lacks any such causal connection to the forum—would eliminate Defendant Audi
from the present action for lack of personal jurisdiction.
Plaintiff argues this question cannot be properly characterized as a controlling question of
law because it cannot be resolved “without at least some inquiry into the factual record.” Response
at 4. Defendant Audi’s question can be answered without the need to study the record, however.
A reviewing court simply needs to review the basic facts pertinent to the exercise of personal
jurisdiction over Defendant Audi. Moreover, whether § 48.193(1)(a)(6) confers specific
jurisdiction absent a casual connection between Defendant Audi’s contacts with Florida and the
Plaintiff’s injury is stated at a sufficiently high level of generality to preclude the need to know the
underlying details of the present action. That question is also of value to other courts, as the limits
of Florida’s long-arm statute for purposes of establishing specific jurisdiction has significant
precedential value.
Plaintiff provides authorities to support its argument that Defendant Audi’s question is not
a controlling question of law, but those authorities found that extensive review of the factual record
was required to answer the fact-intensive questions at issue. Mediaset Espana Comunicacion, S.A.
v. Romay, 2022 WL 1643835, at *2 (S.D. Fla. May 24, 2022); Knepfle v. J-Tech Corp., 2020 WL
1974225, at *1 (M.D. Fla. Apr. 24, 2020); PFM Air, Inc. v. Dr. Ing. HC. F. Porsche A.G., 751 F.
Supp. 2d 1264, 1269 (M.D. Fla. Oct. 7, 2010). The remaining authorities cited by Plaintiff found
that the questions presented for interlocutory appeal were merely fact-specific inquiries with no
meaningful precedential value. See In re U.S. Oil & Gas Litig., No. 83-1702-A1-CIV., 1988 WL

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28544 at *30 (S.D. Fla. Feb. 8, 1988) (whether Florida’s long-arm statute encompasses “contracts
of annuity” as “contracts of insurance” is a “fact-specific personal jurisdiction decision”); see also
Phoenix Process Equip. Co. v. Cap. Equip. & Trading Corp., 250 F. Supp. 3d 296, 304 (W.D. Ky.
2017) (“framing the exact factual situation of this case as an important and unresolved question of
whether personal jurisdiction exists” fails to pose a controlling issue of law). Here, Defendant
Audi’s question implicates the necessary causal connection between Plaintiff’s injury and the
nature of Defendant’s contacts with the forum. This question is one of general applicability, not a
fact-specific question framed at a higher level of generality. Defendant Audi has accordingly
established the first element for leave to file an interlocutory appeal.
ii. Substantial Ground for Difference of Opinion
Defendant Audi argues that there is substantial ground for difference of opinion on its first
question because several courts have interpreted § 48.193(1)(a)(6)’s connexity requirement
differently. Defendant Audi contends that numerous decisions have interpreted § 48.193(1)(a)(6)
as failing to establish personal jurisdiction in similar circumstances. Plaintiff responds that
Defendant Audi fails to identify any authority that held or even supports its proposed interpretation
of § 48.193(1)(a)(6). Defendant Audi replies that numerous cases support its interpretation of §
48.193(1)(a)(6), and that Plaintiff has failed to demonstrate otherwise.
The Court finds that Defendant Audi fails to demonstrate that there is substantial ground
for difference of opinion regarding the proper interpretation of § 48.193(1)(a)(6)’s connexity
requirement. As noted, to demonstrate that a substantial ground for difference of opinion exists,
Defendant Audi must show that this question is (1) difficult and of first impression; (2) district
courts are split as to the issue; or (3) the circuits are split on this issue. Cont’l 332 Fund, LLC, 2018
WL 3656472, at *2. Defendant Audi does not argue that this issue is one of first impression, nor

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does Defendant Audi demonstrate any circuit split on this issue. Instead, Defendant Audi argues
that there is substantial ground for difference of opinion because several Florida appellate courts
and district courts have interpreted § 48.193(1)(a)(6)’s connexity requirement differently.
However, Defendant Audi is incorrect that those decisions reached a contrary interpretation of §
48.193(1)(a)(6).
First, Defendant Audi points to the plain language of § 48.193(1)(a)(6) and dicta from the
Supreme Court of Florida and the Eleventh Circuit to argue that § 48.193(1)(a)(6)—like all
provisions of Florida’s long-arm statute—requires a causal connection between a defendant’s
activity in Florida and the plaintiff’s injury. But Defendant Audi’s appeals to those general
statements fails to establish a substantial ground for difference of opinion on the proper
interpretation of § 48.193(1)(a)(6). See Knepfle v. J-Tech Corp., 48 F.4th 1282, 1292 (11th Cir.
2022) (“Specific jurisdiction under § 48.193(1) ‘requires a connection or “connexity” between the
enumerated activity in Florida and the cause of action.’”) (quoting Aegis Def. Servs., LLC v.
Gilbert, 222 So. 3d 656, 661 (Fla. 5th DCA 2017); see also Wendt v. Horowitz, 822 So. 2d 1252,
1260 (Fla. 2002) (noting that the “predicate finding” that a tortious act was committed in Florida
“is necessary because of the connexity requirement contained in section 48.193(1).”) (citation
omitted). Defendant Audi’s emphasis of § 48.193(1)’s connexity requirement also fails to
demonstrate that there is substantial ground for difference of opinion on its proper application.
Defendant Audi’s observation that “[c]ases interpreting the long-arm statute confirm that the
connexity requirement applies to all of the enumerated acts” in § 48.193(1), including introducing
products into the stream-of-commerce under § 48.193(1)(a)(6), similarly misses the mark.
Despite Defendant Audi’s argument to the contrary, the Court’s Order did not exempt §
48.193(1)(a)(6) from § 48.193(1)’s general connexity requirement. Section 48.193(1)(a)(6)

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requires a causal connection between Defendant Audi’s activity and Florida, which in turn requires
showing that Defendant Audi was either “engaged in solicitation or service activities within this
state” or that “[p]roducts, materials, or things processed, serviced, or manufactured by the
defendant anywhere were used or consumed within this state in the ordinary course of commerce,
trade, or use.” Fla. Stat. Ann. § 48.193(1)(a)(6)(a)-(b) (emphasis added). As the plain language of
that provision makes clear, the causation requirements under § 48.193(1)(a)(6)(a), the “doing
business” prong, and § 48.193(1)(a)(6)(b), the “products liability” prong, are distinct. The Court
noted that distinction in its Order. See ECF No. [57] at 8 (“Unlike the ‘doing business’ prong of
Florida’s long arm statute, which requires a causal connection between the defendant’s activities
in Florida and the plaintiff’s injury, the ‘products liability’ prong has no such requirement.”)
(citation omitted).
The “doing business” prong requires showing that a defendant’s activity in the forum state
caused the plaintiff’s injury, whereas the “products liability” prong requires showing that a
defendant’s manufacture of a product, material, or other processed good caused the plaintiff’s
injury “in the ordinary course of commerce, trade, or use” regardless of where the product was
manufactured. Fla. Stat. Ann. § 48.193(1)(a)(6)(b). In short, the “products liability” prong contains
no causal requirement that the activity that led to Plaintiff’s injury—the design and manufacture
of a vehicle—must be the same activity enabling the Court’s exercise of personal jurisdiction over
Defendant Audi, namely, substantial sale and marketing of Defendant Audi’s vehicles. The
authorities provided by Defendant Audi on this point are accordingly inapposite. Consistent with
those decisions, the Court applied § 48.193(1)’s connexity requirement to § 48.193(1)(a)(6)(b).
See Banco de los Trabajadores v. Cortez Moreno, 237 So. 3d 1127, 1137 (Fla. 3d DCA 2018); DI Davit Inte’l-Hische GMBH v. Carpio, 346 So. 3d 197, 201 (Fla 3d DCA 2022); see also Caiazzo

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v. Am. Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011) (“Specific personal jurisdiction
exists when the alleged activities or actions of the defendant are directly connected to the forum
state.”); Imerys Talc Am., Inc. v. Ricketts, 262 So. 3d 799, 802 (Fla. 4th DCA 2018) (same).
Defendant Audi attempts to insert the “doing business” prong’s causal requirement—that
Defendant Audi’s activities in Florida caused Plaintiff’s injury—into the “stream-of-commerce”
prong. But as the plain language of the provision makes clear, the stream-of-commerce prong has
no such causal requirement. Defendant Audi’s remaining arguments effectively relitigate the
Court’s ruling on personal jurisdiction rather than demonstrate a substantial ground for difference
of opinion.
Defendant Audi argues that the decisions in Piazenko v. Pier Marine Interiors GBH, 314
So. 3d 438 (Fla. 3d DCA 2020), Almond v. Coloplast A/S, 8:20- CV-731-WFJ-AEP, 2021 WL
2042659 (M.D. Fla. May 21, 2021), and Volkswagen Aktiengesellschaft v. Jones, 227 So. 3d 150
(Fla. 2d DCA 2017) demonstrate a substantial ground for difference of opinion on the proper
interpretation of § 48.193(1)(a)(6)(b). In Piazenko, the court simply noted that § 48.193(1)(a)
“requires a causal connection between the defendant's activities in the forum state and the
plaintiff's cause of action.” Piazenko, 314 So. 3d 438 at 444. The Court then determined that the
plaintiff failed to show that the defendant “committed a tort in Florida[,]” and the defendants’
“contacts with the state evidence no connection with the alleged causes of action necessary to
establish specific jurisdiction over him[]” under either § 48.193(1)(a)(2) or the “doing business”
prong of § 48.193(1)(a)(6). Id. Unlike in Piazenko, Plaintiff showed that Defendant Audi allegedly
committed a tort in Florida and has sufficient minimum contacts with the state. Personal
jurisdiction was proper under the “products liability” prong of the long-arm statute, a provision
not at issue in Piazenko.

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In Almond v. Coloplast, 2021 WL 2042659 at *3-4, the court found that exercising personal
jurisdiction under the “products liability” prong of § 48.193(1)(a)(6)(b) was improper because the
defendant “never manufactured” nor “processed or serviced” medical device products in the
United States. The court determined that the plaintiff failed to establish that the defendant
“processed, serviced, or manufactured” the medical device in question and that personal
jurisdiction was therefore improper under § 48.193(1)(a)(6)(b). Id. In reaching its conclusion, the
court in Almond emphasized that “this is not a case where the defendant made the product at issue
and put it into the stream of commerce.” Almond, 2021 WL 2042659 at *5. Unlike in Almond,
Plaintiff here has alleged that Defendant Audi manufactured and designed the vehicle that led to
his injury, and that Defendant Audi intentionally inserted its vehicles the into the stream of
commerce. Moreover, Plaintiff showed that Defendant Audi’s contacts with the Florida market
demonstrate its awareness that its vehicles would be present in this forum. As the Court’s Order
explains, Plaintiff accordingly satisfied § 48.193(1)(a)(6)(b)’s requirement that Defendant Audi
“processed, serviced, or manufactured” the product that led to Plaintiff’s injury in Florida.
Finally, Defendant Audi relies on Jones to argue that Plaintiff’s unilateral activity—driving
his vehicle from California to Florida—renders the exercise of personal jurisdiction improper. But
the court found that personal jurisdiction was absent in Jones because the plaintiff failed to show
that the defendant had “sufficient minimum contacts with Florida[,]” and “nothing in the record
indicate[d] that the replacement brakes” at issue were even manufactured by the defendant. Jones,
227 So. 3d 150 at 158-59. The court’s dicta explaining that “unilateral activity of another party or
a third person is not an appropriate consideration when determining whether a defendant has
sufficient contacts with a forum State to justify an assertion of jurisdiction[]” fails to establish a
substantial ground for difference of opinion. Id. at 158 (quoting Helicopteros Nacionales de

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Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)). This language applies to whether a defendant
has sufficient minimum contacts with the forum state. It does not address § 48.193(1)(a)(6)(b) at
all, let alone its connexity requirement. Moreover, Plaintiff established that Defendant Audi had
minimum contacts with Florida without resort to Plaintiff’s unilateral activity.
In sum, the cases Defendant Audi relies on are consistent with this Court’s interpretation
of § 48.193(1)(a)(6)(b) and accordingly fail to demonstrate a substantial ground for difference of
opinion. Defendant Audi’s remaining arguments simply disagree with the Court’s reasoning.
Defendant Audi’s attempt to cast doubt on the Court’s reliance on Ford Motor Co. v. Mont. Eighth
Jud. Dist. Ct., 141 S. Ct. 1017 (2021) falls short. Defendant Audi is correct that the Supreme Court
did not interpret Florida’s long-arm statute in Ford Motor Co. For the reasons explained above,
this observation fails to demonstrate that the Court’s interpretation of § 48.193(1)(a)(6)(b)’s causal
requirement is inconsistent with any authorities.
Defendant Audi also unconvincingly argues that the Fifth Circuit’s 1981 opinion in
Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236 (5th Cir. 1981) fails to support the Court’s
interpretation. Mallard squarely held that a prior version of Florida’s long-arm statute was
intended to “reach out-of-state manufacturers in products liability actions.” 634 F.2d at 242. The
Court then observed “[w]here, for example, a car has been repaired out-of-state and some time
later the repairs fail during an in-state sojourn causing injury, personal jurisdiction over the outof-state repairman is concededly present under this statute.” Id. Defendant Audi protests that both
Mallard and the decision it relied on found that personal jurisdiction was absent and Mallard
conflicts with the cases discussed above. Yet Mallard found personal jurisdiction was absent
because the plaintiff never used or consumed any product within the meaning of the “products
liability” prong. As such, Mallard is consistent with the analysis set forth in the Court’s Order.

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Defendant Audi has accordingly failed to demonstrate that a substantial ground for
difference of opinion exists with respect to the Court’s interpretation of § 48.193(1)(a)(6)(b). The
authorities Defendant Audi provides instead confirm that the Court “properly applied settled law
to the facts or evidence of a particular case.” Cont’l 332 Fund, LLC v. Albertelli, 2018 WL
3656472, at *2. Defendant Audi has accordingly failed to clear the “high threshold” necessary to
certify this question for interlocutory appeal. OFS Fitel, LLC, 549 F.3d at 1359.
iii. Materially Advance the Ultimate Termination of the Litigation
Defendant Audi has also failed to demonstrate that certifying this question for interlocutory
appeal would “materially advance the ultimate termination of the litigation.” McFarlin, 381 F.3d
at 1259. Defendant Audi is correct that an interlocutory appeal of this question—and a subsequent
finding that personal jurisdiction cannot be properly asserted against Defendant Audi—would
reduce the overall burdens of litigation by eliminating Defendant Audi, thus reducing overall
discovery and issues that must ultimately be resolved. However, Defendant Audi fails to show that
certifying Defendant Audi’s question “would serve to avoid a trial or otherwise substantially
shorten the litigation[,]” however. Id. The Court instead finds that “an interlocutory appeal of this
derivative issue would not advance, but would rather delay the litigation and would benefit only
Defendant [Audi] ….” In re U.S. Oil & Gas Litig., 1988 WL 28544 at * 31. Defendant Audi has
therefore failed to establish the third element permitting the certification of an interlocutory appeal.
B. Personal Jurisdiction
As noted above, Defendant Audi’s second question asks “whether a court can consider the
conduct of an independent U.S. distributor to determine that the exercise of specific jurisdiction
over a foreign manufacturer comports with due process.” Motion at 1-2. The Court proceeds to
determine if this question meets § 1292(b)’s high threshold.

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i. Controlling Question of Law
As with its first question, Defendant Audi has shown that whether the conduct of an
independent U.S. distributor is a proper basis for exercising specific jurisdiction over a foreign
manufacturer presents a controlling question of law. That question is plainly of value to other
courts, as the limits of the exercise of personal jurisdiction over foreign manufacturers raises a
fundamental jurisdictional question. The question is also stated at a high enough level of generality
to preclude a detailed examination of the factual record. As explained above, the authorities relied
on by Plaintiff to oppose the certification of both of Defendant Audi’s questions either found that
the question at issue was either intensely fact-specific or was of little precedential value. Here,
Defendant Audi presents a jurisdictional question that suffers from neither defect.
ii. Substantial Ground for Difference of Opinion
Although Defendant Audi presents a controlling question of law, Defendant Audi fails to
show that there is a substantial ground for difference of opinion. Defendant Audi quarrels with the
Court’s reasoning in finding that Plaintiff demonstrated sufficient minimum contacts enabling the
Court’s exercise of personal jurisdiction over Defendant Audi. As with its first question, Defendant
Audi fails to show that any underlying conflict exists justifying the certification of its second
question for interlocutory appeal.
The Court’s Order relied on the Supreme Court’s decisions in Ford Motor Co. v. Mont.
Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021) and World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980) to reject Defendant Audi’s argument that it has insufficient
minimum contacts with the Florida market to establish personal jurisdiction over Defendant Audi.
The Court explained that “[t]he Supreme Court in Ford reiterated that personal jurisdiction is
conferred over a manufacturer that ‘serve[s], directly or indirectly, the market’ in the forum state.”

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Order at 10 (quoting Ford, 141 S. Ct. at 1027 (quoting World-Wide Volkswagen, 444 U.S. at 297)).
The Court also noted that the Supreme Court specifically referred to “the Audi/Volkswagen
scenario as a paradigm case of specific jurisdiction.” Id. (quoting Ford, 141 S. Ct. at 1027-28).
Consistent with Ford and World-Wide Volkswagen, the Court accordingly found that it has
personal jurisdiction over Defendant Audi, as Plaintiff showed that Defendant Audi indirectly
serves the Florida market.
Here, Defendant Audi argues that neither Ford nor World-Wide Volkswagen “involved a
foreign manufacturer and neither case imputed the conduct of a U.S. distributor to the foreign
manufacturer.” Motion at 11. Defendant Audi observes that the Court’s Order does not cite the
Supreme Court’s decisions in Asahi Metal Industries Co. v. Superior Court of California., 480
U.S. 102 (1987) and J. McIntyre Machines, Ltd. v. Nicastro, 564 U.S. 873 (2011). Defendant Audi
contends that the Court’s “application of Ford Motor and [World-Wide Volkswagen] is in tension
with J. McIntyre’s focus on the manufacturer’s conduct towards the forum, as opposed to the sales
activities of the U.S. distributor.” Id. at 12 (citing J. McIntyre Machines, Ltd., 564 U.S. at 886)
(emphasis in original).
Defendant Audi’s argument fails to show that a substantial ground for difference of opinion
exists on whether the conduct of an independent U.S. distributor is a proper basis for exercising
specific jurisdiction over a foreign manufacturer. The Court’s Order found that Defendant Audi,
at minimum, indirectly serves the Florida market. Consistent with Ford and World-Wide
Volkswagen, the Court concluded that exercising personal jurisdiction over Defendant Audi was
thus proper. Defendant Audi does not take issue with that finding directly. Instead, Defendant
notes that the Court did not also discuss the Supreme Court’s decisions in Asahi Metals and J.
McIntyre. But this fails to show any ground for difference of opinion. Defendant Audi’s bare

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assertion that the Court’s application of Ford and World-Wide Volkswagen “is in tension with J.
McIntyre’s focus on the manufacturer’s conduct towards the forum” similarly fails to show any
ground for substantial difference of opinion. Motion at 12. Defendant Audi provides no authority
interpreting those decisions in a contrary manner. There is accordingly no basis for certifying
Defendant Audi’s question for interlocutory appeal in the absence of any authority demonstrating
a difference of opinion on this issue.
Defendant Audi next relies on numerous decisions to argue that “the Court’s understanding
of the ‘indirectly serving the market’ language from Ford Motor and [World-Wide Volkswagen]
cannot be reconciled with a large number of cases holding that, for purposes of establishing
jurisdiction, a court cannot impute the sales activities of a distributor (or other affiliated company)
to the manufacturer unless the plaintiff can pierce the corporate veil by establishing an alter ego or
agency theory.” Motion at 12. The cases Defendant Audi provides in support of this argument are
inapposite, however. In those cases, the courts considered whether exercising personal jurisdiction
was proper based on a theory of general jurisdiction. Here, the Court’s Order conversely
determined that personal jurisdiction over Defendant Audi is proper through the exercise of
specific jurisdiction, not general jurisdiction.
Defendant Audi’s reliance on the Supreme Court’s decision in Daimler AG v. Bauman,
571 U.S. 117, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014), is misplaced. Daimler aptly illustrates this
critical distinction. As relevant here, the Supreme Court explained:
International Shoe distinguished between, on the one hand, exercises of specific
jurisdiction, as just described, and on the other, situations where a foreign
corporation's “continuous corporate operations within a state [are] so substantial
and of such a nature as to justify suit against it on causes of action arising from
dealings entirely distinct from those activities.” 326 U.S., at 318, 66 S.Ct. 154. As
we have since explained, “[a] court may assert general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any and all claims against them
when their affiliations with the State are so ‘continuous and systematic’ as to render

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them essentially at home in the forum State.” Goodyear, 564 U.S., at ––––, 131
S.Ct., at 2851; see id., at ––––, 131 S.Ct., at 2853–2854; Helicopteros, 466 U.S., at
414, n. 9, 104 S.Ct. 1868.
Id. at 128 (footnote call number omitted). As Defendant Audi observes, the Supreme Court then
noted that “several Courts of Appeals have held[] that a subsidiary’s jurisdictional contacts can be
imputed to its parent only when the former is so dominated by the latter as to be its alter ego” for
the purpose of subjecting a foreign corporation “to a court’s general jurisdiction based on the
contacts of its in-state subsidiary.” Id.
Here, the Court’s Order determined that exercising specific jurisdiction over Defendant
Audi is proper because Defendant Audi indirectly serves the Florida market in such a manner as
to permit the exercise of personal jurisdiction based on its minimum contacts with this forum. The
Court did not exercise general jurisdiction over Defendant Audi, nor did it suggest that it could do
so by imputing an in-state subsidiary’s conduct to Defendant Audi as its foreign parent company.
The authorities provided by Defendant Audi are accordingly inapposite. In each, personal
jurisdiction was lacking over the defendant because there was an insufficient agency relationship
between a subsidiary and the defendant, a foreign parent company. 1
Defendant Audi accordingly fails to demonstrate that substantial ground for difference of
opinion exists regarding its second question. Defendant Audi has not shown that any courts have

Knepfle v. J-Tech Corp., 48 F.4th 1282, 1291-92 (11th Cir. 2022); Kearney v. Bayerische Motoren
Werke Aktiengesellschaft, CV 17-13544, 2021 WL 1207476, at *3 (D.N.J. Mar. 31, 2021); Volkswagen
Aktiengesellschaft v. Jones, 227 So. 3d 150, 158-59 (Fla. 2d DCA 2017); Schwartzberg v. Knobloch, 98
So. 3d 173, 182 (Fla. 2d DCA 2012); Reynolds Am., Inc. v. Gero, 56 So. 3d 117, 119-20 (Fla. 3d DCA
2011); Am. Exp. Ins. Services Europe Ltd. v. Duvall, 972 So. 2d 1035, 1039 (Fla. 3d DCA 2008); Dev.
Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So.2d 1156, 1162 (Fla. 4th DCA 2006); State v. Am.
Tobacco Co., 707 So. 2d 851, 854 (Fla. 4th DCA 1998); Qualley v. Int'l Air Serv. Co., Ltd., 595 So. 2d 194,
196 (Fla. 3d DCA 1992).
1

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Case No. 22-cv-21585-BLOOM/Otazo-Reyes
disagreed with the Court’s straightforward application of Ford and World-Wide Volkswagen to the
present action.
iii. Materially Advance the Ultimate Termination of the Litigation
As with its first question, Defendant Audi has also failed to show that resolving this
question would materially advance the ultimate termination of the litigation. Defendant Audi
provides the same reasoning for its second question, namely, that resolving this question could
eliminate Defendant Audi from this action, saving time and expense for all parties. As explained
above, Defendant Audi has not shown that removing it from the present action would materially
advance the ultimate termination of the litigation. Instead, waiting to litigate Plaintiff’s claims until
after resolution of an interlocutory appeal would delay rather than advance the ultimate resolution
of the present action. Defendant Audi has accordingly also failed to satisfy the third element
permitting the certification of an interlocutory appeal.
Based on the discussion above, the Court finds that Defendant Audi has failed to meet its
heavy burden of establishing that an interlocutory appeal is warranted here. Accordingly, the two
issues presented for certification do not merit deviation from the general principle that appeals
should be conducted after final judgment. See McFarlin v. Canseco Servs., LLC, 381 F.3d 1251,
1264 (11th Cir. 2004).
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant Audi’s Motion to
Amend Order on Motion to Dismiss to Include a Certification for Interlocutory Appeal, ECF No.
[61], is DENIED.

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DONE AND ORDERED in Chambers at Miami, Florida, on November 13, 2023.

___________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies to:
Counsel of Record

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