Escobar v. European Aeronautic Defence and Space Company et al
Filing
490
ORDER DENYING PLAINTIFF'S MOTION TO CERTIFY ORDERS FOR INTERLOCUTORY APPEAL (ECF No. 482 ) - Signed by JUDGE HELEN GILLMOR on 3/6/2020. (jo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VIOLETA ESCOBAR, also known as
VIOLETA ESCOBAR CLINE,
Individually and as Personal
Representative for the ESTATE
OF NATHAN CLINE, Deceased,
Plaintiff,
vs.
NEVADA HELICOPTER LEASING LLC,
Defendant.
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Civ. No. 13-00598 HG-WRP
ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY ORDERS FOR
INTERLOCUTORY APPEAL (ECF No. 482)
In November 2011, a helicopter piloted by the Plaintiff’s
husband crashed on the island of Molokai.
Plaintiff filed a
Complaint against Defendant Nevada Helicopter Leasing LLC, the
owner of the Subject Helicopter, and other Defendants, asserting
negligence and strict liability claims.
In July 2016, the Federal District Court granted Defendant
Nevada Helicopter Leasing LLC’s Motion for Summary Judgment.
Plaintiff appealed and in February 2019, the case was
remanded.
The Ninth Circuit Court of Appeals found that there
were issues of fact as to whether Defendant Nevada Helicopter
Leasing LLC had actual possession or actual control of the
Subject Helicopter at the time of the crash.
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On remand, the District Court granted Defendant Nevada
Helicopter Leasing LLC’s Motion to Bifurcate the trial based on
the decision from the Ninth Circuit Court of Appeals.
The District Court set the first trial for January 13, 2020.
The District Court issued various orders in preparing for
trial.
On November 14, 2019, the Court issued a Minute Order
denying Plaintiff’s claim that David Chevalier’s deposition
testimony constituted a judicial admission.
(ECF No. 413).
On November 25, 2019, the Court issued an ORDER DENYING
PLAINTIFF’S MOTION TO STRIKE THE EXPERT DISCLOSURE OF DOUGLAS E.
STIMPSON AS UNTIMELY AND PERMITTING DOUGLAS E. STIMPSON TO
TESTIFY AS AN EXPERT IN THE AVIATION INDUSTRY AND DEFERRING
RULING ON HIS ABILITY TO TESTIFY AS AN ACCIDENT RECONSTRUCTION
EXPERT.
(ECF No. 420).
On January 7, 2020, the Court held a Final Pretrial
Conference.
(ECF No. 476).
The Court issued oral rulings on
some of the Parties’ Motions in Limine and indicated it would
file written orders.
(Id.)
On January 8, 2020, the Court issued an Evidentiary Ruling
that found the FAA’s 2016 Advisory Circular 91-37B, at Exhibit
1007 was admissible and the FAA’s 1978 Advisory Circular 91-37A,
at Exhibit 8, is inadmissible.
(ECF No. 477).
Also on January 8, 2020, the Court issued an ORDER DENYING
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PLAINTIFF’S MOTION IN LIMINE NO. 1 AND GRANTING, IN PART, AND
DENYING, IN PART, PLAINTIFF’S MOTION IN LIMINE No. 2.
(ECF No.
478).
On January 10, 2020, the Friday before trial was to start on
Monday, Plaintiff filed a Motion to Certify Orders for
Interlocutory Appeal.
(ECF No. 482).
Plaintiff requests that this Court certify to the Ninth
Circuit Court of Appeals that it should conduct an interlocutory
review of the District Court’s pretrial rulings before a trial is
conducted on the merits pursuant to 28 U.S.C. § 1292(b).
Defendant opposes Plaintiff’s motion, asserting that there
is no basis for an interlocutory appeal as Plaintiff has
attempted to appeal multiple pretrial rulings and has
misconstrued the record.
Plaintiff’s Motion to Certify Orders for Interlocutory
Appeal (ECF No. 482) is DENIED.
PROCEDURAL HISTORY
On November 6, 2013, Plaintiff filed her Complaint.
(ECF
No. 1).
On July 17, 2015, Plaintiff filed her First Amended
Complaint.
(ECF No. 32).
On July 21, 2016, the Court issued an ORDER GRANTING
DEFENDANT NEVADA HELICOPTER LEASING LLC’S MOTION FOR SUMMARY
3
JUDGMENT.
(ECF No. 172).
On March 3, 2017, the Court issued a STIPULATION FOR
DISMISSAL OF ALL CLAIMS BY AND BETWEEN PLAINTIFF VIOLETA ESCOBAR
AND AIRBUS GROUP, S.E. WITH PREJUDICE.
(ECF No. 347).
On March 30, 2017, Plaintiff filed a Notice of Appeal of the
Court’s Order on Summary Judgment.
(ECF No. 348).
On February 11, 2019, the Ninth Circuit Court of Appeals
issued a Memorandum Opinion and reversed and remanded
proceedings.
(ECF No. 358).
On March 5, 2019, the Mandate was issued.
(ECF No. 359).
On May 16, 2019, the Court held a Status Conference.
(ECF
No. 383).
On October 4, 2019, the Court held a hearing on Defendant’s
Motion to Bifurcate Trial.
(ECF No. 395).
The Court granted
Defendant’s Motion and set the first trial for January 13, 2020.
(Id.)
On October 30, 2019, the Court held a hearing on Plaintiff’s
Motion to Strike the Expert Disclosure of Douglas E. Stimpson.
(ECF No. 402).
On November 5, 2019, the Court issued an ORDER GRANTING
DEFENDANT NEVADA HELICOPTER LEASING LLC’S MOTION TO BIFURCATE
TRIAL.
(ECF No. 405).
On November 14, 2019, the Court held a Status Conference
regarding the Parties’ Proposed Jury Instructions Regarding
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Control of the Aircraft.
(ECF No. 413).
On November 25, 2019, the Court issued an ORDER DENYING
PLAINTIFF’S MOTION TO STRIKE THE EXPERT DISCLOSURE OF DOUGLAS E.
STIMPSON AS UNTIMELY AND PERMITTING DOUGLAS E. STIMPSON TO
TESTIFY AS AN EXPERT IN THE AVIATION INDUSTRY AND DEFERRING
RULING ON HIS ABILITY TO TESTIFY AS AN ACCIDENT RECONSTRUCTION
EXPERT.
(ECF No. 420).
On January 7, 2020, the Court held a Final Pretrial
Conference.
(ECF No. 476).
On January 8, 2020, the Court issued an Evidentiary Ruling.
(ECF No. 477).
Also on January 8, 2020, the Court issued an ORDER DENYING
PLAINTIFF’S MOTION IN LIMINE NO. 1 AND GRANTING, IN PART, AND
DENYING, IN PART, PLAINTIFF’S MOTION IN LIMINE NO. 2.
(ECF No.
478).
On January 10, 2020, Plaintiff filed PLAINTIFF’S MOTION TO
CERTIFY ORDERS FOR INTERLOCUTORY APPEAL.
(ECF No. 482).
Also on January 10, 2020, the Court held a Final Pretrial
Conference.
(ECF No. 483).
At the hearing, Plaintiff’s co-
counsel represented that Plaintiff’s lead attorney was injured
and would be unable to proceed to trial on January 13, 2020.
(Id.)
The Court continued the first trial until June 2, 2020.
(Id.)
On January 30, 2020, Defendant filed DEFENDANT NEVADA
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HELICOPTER LEASING’S OPPOSITION TO PLAINTIFF’S MOTION TO CERTIFY
ORDERS FOR INTERLOCUTORY APPEAL.
(ECF No. 488).
The Court elects to decide the matter without a hearing
pursuant to District of Hawaii Local Rule 7.1(c).
STANDARD OF REVIEW
An appellate court generally cannot review a district court
order until after entry of a final judgment.
515 U.S. 304, 309 (1995).
Johnson v. Jones,
28 U.S.C. § 1292(b) provides an
exception to the general rule.
Section 1292(b) 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: Provided, however, That application for an
appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court
of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b).
Section 1292(b) is used only in exceptional circumstances in
which allowing an interlocutory appeal would avoid protracted and
expensive litigation or would otherwise be helpful in light of
the nature of the case and the totality of the circumstances.
In
re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982);
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Leong v. Hilton Hotels Corp., 689 F.Supp. 1572, 1574 (D. Haw.
1988).
The district court must certify an order for immediate
appeal before the court of appeals has discretion to accept
jurisdiction pursuant to Section 1292(b).
Van Dusen v. Swift
Transp. Co. Inc., 830 F.3d 893, 896 (9th Cir. 2016); Pride
Shipping Corp. v. Tafu Lumber Co., 898 F.2d 1404, 1406 (9th Cir.
1990) (there is no appellate jurisdiction pursuant to § 1292(b)
where the district court denies a request to certify an order).
ANALYSIS
Plaintiff requests the District Court certify certain
pretrial rulings as immediately reviewable as an interlocutory
appeal to the Ninth Circuit Court of Appeals.
A district court must determine whether the following
certification requirements for an interlocutory appeal of its own
order have been met:
(1)
that the order present a controlling question
of law;
(2)
that there be substantial grounds for
difference of opinion as to the order’s
ruling; and,
(3)
that an immediate appeal of the order may
materially advance the ultimate termination
of the litigation.
Kowalski v. Anova Food, LLC, 958 F.Supp.2d 1147, 1154 (D.
Haw. 2013).
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1.
Whether There Is A Controlling Question Of Law
To be appealable pursuant to Section 1292(b), a certified
order must involve a controlling question of law.
A question of
law is controlling if its resolution on appeal “could materially
affect the outcome of litigation in the district court.”
Cement Antitrust Litig., 673 F.2d at 1026.
In re
An appellate court’s
interlocutory jurisdiction permits the court “to address any
issue fairly included within the certified order because it is
the order that is appealable....”
Deutsche Bank Nat’l. Tr. Co.
v. FDIC, 744 F.3d 1124, 1134 (9th Cir. 2014) (quoting Nev. v.
Bank of Am. Corp., 672 F.3d 661, 673 (9th Cir. 2012)).
The District Court may only certify “orders” to the Ninth
Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b).
Plaintiff’s Motion, however, seeks review of a number of
statements by the Court and cites to an uncertified transcript
from the January 7, 2020 Final Pretrial Conference.
These
statements are not orders and are not immediately appealable
pursuant to Section 1292(b).
Plaintiff has not otherwise specified which “order” issued
by the Court she seeks to certify.
Instead, Plaintiff’s Motion
seeks to certify her counsel’s own arguments rather than rulings
that the Court made.
Plaintiff’s Motion has taken portions of a
rough draft of a transcript from the January 7, 2020 Final
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Pretrial Conference.1
The out of context portions of the rough
draft can be misconstrued.
Plaintiff mischaracterizes the District Court’s rulings.
For example, Plaintiff claims that the Court has ruled that “the
lessor may not be held legally responsible for the crash at issue
unless it was actually flying the helicopter when it crashed.”
(Pla.’s Motion at p. 10, ECF No. 482).
The Court ruled that the
Federal Aviation Administration’s definition of “operational
control” is relevant as well as the enumerated factors set forth
in the Federal Aviation Administration’s Advisory Circular 9137B:
1.
Which entity makes the decision to assign crewmembers
and aircraft; accept flight requests; and initiate,
conduct, and terminate flights?
2.
For which entity do the pilots work as direct employees
or agents?
3.
Which entity is maintaining the aircraft and where is
it maintained?
4.
Prior to departure, which entity ensures the flight,
aircraft, and crew comply with regulations?
5.
Which entity decides when and where maintenance is
accomplished, and which entity directly pays for
1
Plaintiff’s Motion claims to cite to a rough draft of a
January 7, 2020 transcript. (Pla.’s Motion to Certify at p.2
n.1, ECF No. 482). Plaintiff did not attach any rough draft of a
transcript to the pleading. The rough draft is not appropriate
for citation in a pleading. The rough drafts provided by the
court reporters contain a disclaimer that the rough is
uncertified and unedited and not to be cited. The certified
transcript of the January 7, 2020 hearing is available at ECF No.
487.
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maintenance?
6.
Which entity determines weather and fuel requirements
and which entity directly pays for the fuel?
7.
Which entity directly pays for the airport fees,
parking and hangar costs, food service, and/or rental
cars?
(Advisory Circular 91-37B, Exhibit 1007 at ¶ 6.3).
Plaintiff also claims that the Court has ruled that only an
entity that has been issued a certificate by the FAA may be held
liable under the statute.
Court’s ruling.
Again, Plaintiff mischaracterizes the
The factors set forth in the Federal Aviation
Administration’s regulations and Advisory Circular 91-37B are
relevant but not exhaustive.
In addition, Plaintiff claims that the Court has prevented
her expert John McGraw from testifying on relevant issues in the
trial.
(Pla.’s Motion at p. 15, ECF No. 482).
In fact, over the
objection of the Defendant, the Court exercised its discretion to
allow Plaintiff to call Mr. McGraw who was not disclosed until
less than a month from the scheduled trial date.
(December 20,
2019 Minute Order extending the deadline for Plaintiff’s
disclosure of Mr. McGraw, ECF No. 466).
There is a limitation on the Plaintiff’s expert’s testimony
that Plaintiff objects to.
At the Final Pretrial Conference, the
Court explained to Plaintiff that Mr. McGraw may not provide
testimony as to what he believes the law is or ought to be and he
may not testify as to any legal conclusions.
10
See CFM
Communications, LLC v. Mitts Telecasting Co., 424 F.Supp.2d 1229,
1233 (E.D. Cal. 2005) (explaining that an expert may describe a
complicated agency process, but the testimony may not prescribe
legal standards for the jury to apply to the facts of the case or
to interpret the legal effect of the terms).
Plaintiff also seeks to have Mr. McGraw testify regarding
Nevada Leasing’s Operating Agreement and Security Agreement.
The
Court has not precluded Mr. McGraw from testifying about the
documents, however, Plaintiff must establish the relevance of
such testimony.
The Court has already ruled that the plain and
ordinary language contained in the April 2, 2001 Operating
Agreement (Exhibit 3) and the June 1, 2011 Lease Agreement
between Nevada Helicopter Leasing LLC and Blue Hawaiian
Helicopters (Exhibit 4) does not support Plaintiff’s theory of
the case.
Mr. McGraw may not testify as to his understanding or
belief as to the meaning of any contract terms.
Aguilar v. Int’l
Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th Cir.
1992) (citing Marx v. Diners Club, Inc., 550 F.2d 505, 509 (2d.
Cir. 1977)).
Contrary to Plaintiff’s position, the District Court has
made rulings in conformity with the Memorandum Opinion issued by
the Ninth Circuit Court of Appeals on February 11, 2019. (ECF No.
358).
Plaintiff has not established there is a controlling issue
11
of law in any order issued by this Court that is appropriate to
certify to the Ninth Circuit Court of Appeals.
2.
Whether Substantial Grounds For Differences Of Opinion
Exist As To Controlling Question of Law
To permit appeal pursuant to Section 1292(b), there must be
substantial ground for a difference of opinion as to the
controlling question of law raised in the certified order.
Fortyune v. City of Lomita, 766 F.3d 1098, 1101 n.2 (9th Cir.
2014).
A substantial ground for difference of opinion exists
where novel legal issues are presented, on which fair-minded
jurists might reach contradictory conclusions.
Reese v. BP Expl.
(Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011).
Here, Plaintiff has not identified the order that she
believed should be certified, she has not identified a
substantial question of controlling law, and she has not
demonstrated that her disagreements with prior court rulings
provide for a basis for an interlocutory appeal.
Plaintiff’s Motion identifies the Court’s ruling on the
admissibility of “documents” as the basis for the substantial
differences of opinion for purposes of her interlocutory appeal.
(Pla.’s Motion at pp. 12-13, ECF No. 482).
Evidentiary rulings
are not a basis for certifying an appeal as they do not involve
novel legal issues.
Reese, 643 F.3d at 688.
Substantial grounds for differences of opinion exist where
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the circuits are in dispute on a legal question or where there
are novel and difficult questions of first impression.
Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).
Couch v.
Plaintiff has
not established that such a basis exists for purposes of
certification of an interlocutory appeal pursuant to Section
1292(b).
Plaintiff claims that the question regarding the application
of the amended language in 49 U.S.C. § 44112 provides a
substantial question for a difference of opinion.
On October 5,
2018, Congress amended Section 4112(b) from “actual control” to
state “actual operational control.”
Plaintiff’s claim regarding
the amendment fails on two separate basis.
First, Plaintiff stipulated that the amended language to 49
U.S.C. § 44112 applies in this case.
Following remand, the Court
held several status conferences with the Parties and inquired as
to their positions with respect to the amended language to the
statute as instructed by the Ninth Circuit Court of Appeals.
At
the hearing on November 14, 2019, both Plaintiff and Defendant
agreed “that is appropriate to apply the current version of 49
U.S.C. § 44112(b), effective October 5, 2018, to this case.”
(Minutes from November 14, 2019 Hearing, ECF No. 413).
Second, the legislative history of the amendment to Section
44112(b) demonstrates that the amendment was made to clarify the
meaning of the statute.
There is no substantial question of law.
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The amendment applies here.
When a clarification of the law is
enacted to provide guidance as to what the law originally
intended, it applies retroactively.
Beverly Cmt. Hosp. Ass’n v.
Belshe, 132 F.3d 1259, 1265 (9th Cir. 1997); United States v.
Donaghe, 50 F.3d 608, 612 (9th Cir. 1994).
3.
Whether Immediate Appeal Would Materially Advance
Litigation
An order is not reviewable pursuant to Section 1292(b)
unless its immediate review may materially advance litigation.
The Ninth Circuit Court of Appeals has found that immediate
appeal does not materially advance the ultimate termination of
litigation where the appeal might postpone the scheduled trial
date.
Shurance v. Planning Control Int’l, Inc., 839 F.2d 1347,
1348 (9th Cir. 1988).
Trial is scheduled for June 2, 2020.
It is highly unlikely
that the Ninth Circuit Court of Appeals could possibly rule on
Plaintiff’s request to review the Court’s pre-trial rulings prior
to trial in less than four months.
Plaintiff also has not demonstrated that appellate review
would eliminate the trial.
See McFarlin v. Conseco Servs., LLC,
381 F.3d 1251, 1259 (11th Cir. 2004).
The Ninth Circuit Court of Appeals remanded proceedings for
the District Court to decide the specific issues Plaintiff now
seeks to appeal.
There is no basis to find that immediate appeal
14
would materially advance litigation.
CONCLUSION
PLAINTIFF’S MOTION TO CERTIFY ORDERS FOR INTERLOCUTORY
APPEAL (ECF No. 482) is DENIED.
IT IS SO ORDERED.
Dated: March 6, 2020, Honolulu, Hawaii.
Violeta Escobar, also known as Violeta Escobar Cline,
Individually, and as Personal Representative for the Estate of
Nathan Cline, Deceased v. Nevada Helicopter Leasing, LLC, Civil
No. 13-00598 HG-WRP; ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY
ORDERS FOR INTERLOCUTORY APPEAL (ECF No. 482)
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