PLIXER INTERNATIONAL INC v. SCRUTINIZER GMBH

Filing 40

ORDER ON DEFENDANT'S MOTION TO CERTIFY granting 38 Motion to Certify By JUDGE D. BROCK HORNBY. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PLIXER INTERNATIONAL, INC.,
PLAINTIFF
V.

SCRUTINIZER GMBH,
DEFENDANT

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CIVIL NO. 2:16-CV-578-DBH

ORDER ON DEFENDANT’S MOTION TO CERTIFY
I recently denied the German defendant’s motion to dismiss this case for
lack of personal jurisdiction under Fed. R. Civ. P. 4(k)(2). Order on Mot. to
Dismiss for Lack of Jurisdiction, Oct. 18, 2017 (ECF No. 29). The defendant has
now moved under 28 U.S.C. § 1292(b) for permission to take an interlocutory
appeal of that Order to the Court of Appeals for the First Circuit. The First
Circuit does “not normally allow an appeal from a denial of a motion to dismiss.”
McGillicuddy v. Clements, 746 F.2d 76, 76 n.1 (1st Cir. 1984). But I conclude
that this case meets the standard the First Circuit applies for an interlocutory
appeal—“used sparingly and only in exceptional circumstances, and where the
proposed intermediate appeal presents one or more difficult and pivotal
questions of law not settled by controlling authority.” Id.; see also CaraballoSeda v. Mun. of Hormigueros, 395 F.3d 7, 9 (1st Cir. 2005) (quoting the same
language). I therefore GRANT the motion, applying the criteria of section 1292(b):

1.

The matter involves a controlling question of law. If I was incorrect

in my conclusion that specific personal jurisdiction exists over this defendant,
the lawsuit cannot proceed; thus the issue of personal jurisdiction is a
controlling question of law.
2.

There is substantial ground for difference of opinion on this question

of law. As I stated in my October 18 Order, the United States Supreme Court
has never addressed the scope of Fed. R. Civ. P. 4(k)(2), the First Circuit has not
addressed the issue of specific personal jurisdiction based solely upon an
interactive website that offers cloud-based services, Op. at 2, and other Circuits
apply differing approaches. Op. at 9-11. The question is both “difficult and
pivotal,” and there is no “controlling authority” that settles it. McGillicuddy, 746
F.2d at 76 n.1. I do note that the “relatedness” element of specific personal
jurisdiction is not at issue in this case.
3.

An immediate appeal from my Order may materially advance the

ultimate termination of the litigation, because if the First Circuit rules that I was
incorrect in my conclusion that specific personal jurisdiction exists, the lawsuit
will immediately terminate, and the German defendant need not defend itself in
this country.
For those reasons I GRANT the motion and STAY proceedings in this Court
while the First Circuit decides whether to accept the appeal.
SO ORDERED.
DATED THIS 5TH DAY OF JANUARY, 2018
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
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