Davis v. BRP U.S., Inc.
ORDER denying motion for reconsideration; granting motion for interlocutory appeal. 158 Signed by District Judge Tom S. Lee on 03/28/2013 (CP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
LINDA DAVIS AND
CIVIL ACTION NO. 3:11CV236TSL-MTP
BOMBARDIER RECREATIONAL PRODUCTS,
INC., BRP, U.S., INC., KONGSBERG,
INC., TELEFLEX, AND TELEFLEX CANADA, INC.
This cause is before the court on the motion of defendant
Kongsberg, Inc. to reconsider the court’s February 11, 2013 order
or, in the alternative, for certification of interlocutory appeal
pursuant to 28 U.S.C. § 1292(b).
Plaintiffs Linda Davis and
Willie Lee have responded to the motion and the court, having
considered the memoranda of authorities submitted by the parties,
concludes that Kongsberg’s request for reconsideration should be
denied but its request for certification of interlocutory appeal
should be granted.
Kongsberg, Inc. argues that the court erred in granting
plaintiffs’ motion for reconsideration because plaintiffs failed
to demonstrate a proper basis for reconsideration under Federal
Rule of Civil Procedure 59(e).
However, as no judgment was
entered, plaintiffs’ motion for reconsideration was governed by
Rule 54(d), which states:
(b) Judgment on Multiple Claims or Involving Multiple
Parties. When an action presents more than one claim
for relief--whether as a claim, counterclaim,
crossclaim, or third-party claim--or when multiple
parties are involved, the court may direct entry of a
final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines
that there is no just reason for delay. Otherwise, any
order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
See Dierig v. Lees Leisure Indus., Ltd., Civil Action No.
11–125–DLB–JGW, 2012 WL 669968, 2 (E.D. Ky. Feb. 28, 2012)
(finding that motion to reconsider order which dismissed only one
of multiple defendants and which was not followed by separate
judgment of dismissal was an interlocutory order and thus not
subject to Rule 59(e)).
The Fifth Circuit has held that “when a
district court rules on an interlocutory order, it is ‘free to
reconsider and reverse its decision for any reason it deems
sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law.’”
Pride Cent. America, LLC, 595 F.3d 206, 210 -211 (5th Cir. 2010)
(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d
167, 185 (5th Cir. 1990), abrogated on other grounds by Little v.
Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994)); see also United
States v. Renda, No. 11–41203, 2013 WL 628223, 3 (5th Cir. Feb.
20, 2013) (explaining that “Rule 54(b) authorizes a district court
to reconsider and reverse its prior rulings on any interlocutory
order ‘for any reason it deems sufficient’”) (quoting Saqui, 595
F.3d at 210-211); Iturralde v. Shaw Group, Inc., No. 12–30512,
2013 WL 599864, 1 (5th Cir. Feb. 18, 2013) (stating that “[u]nder
Rule 54, a district court has ‘the inherent procedural power to
reconsider, rescind, or modify an interlocutory order for cause
seen by it to be sufficient.’") (quoting Melancon v. Texaco, Inc.,
659 F.2d 551, 553 (5th Cir. Unit A 1981)).
The court has
explained the basis for its decision to reconsider in its opinion
and order of February 11, 2013.
The motion to reconsider will be
28 U.S.C. § 1292(b) states, in pertinent part, as follows:
(b) 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.
Kongsberg, Inc. asserts that an interlocutory appeal should be
permitted in this case based on the issue whether the Supreme
Court’s opinion in J. McIntyre Machinery, Ltd. v. Nicastro, –––
U.S. ––––, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011), alters the
Fifth Circuit’s foreseeability standard for personal jurisdiction
under the stream of commerce theory.
As yet, this remains an
unresolved issue in the Fifth Circuit1; and as the court agrees
that the resolution of the issue could potentially materially
advance the ultimate termination of the litigation against
Kongsberg, Inc., the court will grant its request that the court’s
reconsideration order be certified for interlocutory appeal.
Based on the foregoing, it is ordered that Kongsberg, Inc.’s
motion to reconsider is denied, and it is further ordered that its
motion for certification of interlocutory appeal is granted.
SO ORDERED this 28th day of March, 2013.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
It bears noting that the issue is presently before the
Fifth Circuit in Ainsworth v. Moffett Eng’g, Ltd., No. 12-60155
(5th Cir.), which was accepted for consideration on interlocutory
appeal. The appellate court has heard argument in the Ainsworth
case but has not issued a decision on the appeal.
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