Shirah v. Air & Liquid Systems Corporation et al

Filing 245

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendant CBS Corporation's motion for reconsideration or for certification for interlocutory appeal 225 is DENIED. IT IS FURTHER ORDERED that the joint motion for voluntary dismissal 244 is GRANTED, and this case is dismissed with prejudice as to Crown Cork & Seal Company only. Signed by District Judge Catherine D. Perry on 9/19/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LESTER D. SHIRAH,
Plaintiff,
vs.
AIR & LIQUID SYSTEMS
CORPORATION, et al.,
Defendants.

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Case No. 4:15 CV 1636 CDP

MEMORANDUM AND ORDER
Plaintiff Lester D. Shirah alleges he was injured after being exposed to
asbestos while serving as a boiler tender in the U.S. Navy in the 1960s. Although
he claims his exposure occurred outside the state of Missouri, he filed this lawsuit
in Missouri state court. It was then removed to this court by defendant Crane Co.
After removal, defendant CBS Corporation filed a motion to dismiss plaintiff’s
claims against it based on lack of personal jurisdiction. After a hearing on the
record, I concluded that although CBS is a foreign corporation, it consented to
personal jurisdiction in Missouri by appointing an agent for service in the state, see
Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir. 1990), and I denied
CBS’s motion to dismiss. In the motion before me now, CBS asks for
reconsideration of my denial of its motion to dismiss. Alternatively, CBS asks that
I certify the issue of personal jurisdiction by consent for appeal to the Eighth

Circuit in accordance with 28 U.S.C. § 1292(b). Also before me is a joint motion
for voluntary dismissal filed by plaintiff and defendant Crown Cork & Seal
Company.
Discussion
Because CBS’s motion for reconsideration makes no new legal or factual
arguments that convince me that my prior decision was in error, the motion for
reconsideration will be denied.
I am also denying CBS’s motion to certify this issue for interlocutory appeal.
It has “long been the policy of the courts to discourage piece-meal appeals.” White
v. Nix, 43 F.3d 374, 376 (8th Cir.1994) (citing Control Data Corp. v. International
Business Machs. Corp., 421 F.2d 323, 325 (8th Cir. 1970)). Motions to certify
issues for interlocutory appeal should be “granted sparingly and with
discrimination.” Id. A district court should grant certification only where: (1) the
order involves a controlling question of law; (2) there is substantial ground for
difference of opinion; and (3) certification will materially advance the ultimate
termination of the litigation. Id. at 377 (citing Paschall v. Kansas City Star, Co.,
605 F.2d 403, 406 (8th Cir.1979)).
Here, certification will not materially advance the ultimate termination of the
litigation. There are currently approximately twenty defendants in this matter,
each of whom may or may not be liable for plaintiff’s asbestos exposure. If CBS
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were ultimately dismissed due only to lack of personal jurisdiction, it would not
change the course of the case except to potentially delay resolution. While a
dismissal of CBS would obviously advance the case as to that defendant, an
interlocutory appeal would only prolong the ultimate resolution of the action. See
White, 43 F.3d at 376 (8th Cir.1994) (Section 1292(b) should be used only in
“exceptional cases where a decision on appeal may avoid protracted and expensive
litigation”).
Accordingly,
IT IS HEREBY ORDERED that defendant CBS Corporation’s motion for
reconsideration or for certification for interlocutory appeal [225] is DENIED.
IT IS FURTHER ORDERED that the joint motion for voluntary dismissal
[244] is GRANTED, and this case is dismissed with prejudice as to Crown Cork &
Seal Company only.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 19th day of September, 2016.

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