Anderson et al v. Hansen

Filing 82

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Jeffrey Hansen's Motion to Stay Pending Appeal (Doc. #72 ) is GRANTED in part. This case is STAYED provided that this Court will rule on Plaintiffs' Motion for Certification of Interlocutory Appeal (Doc. #77 ) and the pending, fully briefed discovery motions concerning the IME. (Docs. #62 , #65 ). The parties shall promptly advise the Court of any material developments in the appeal process. IT IS FURTHER ORDERED that the trial setting of March 7, 2022 is hereby VACATED and will be reset if necessary once the Eighth Circuit issues its mandate. IT IS FINALLY ORDERED that Plaintiffs Katherine and Jason Anderson's Motion for Certification of Interlocutory Appeal (Doc. #77 ) is DENIED. Signed by District Judge John A. Ross on 9/7/2021. (CLO)

Case: 4:20-cv-00991-JAR Doc. #: 82 Filed: 09/07/21 Page: 1 of 11 PageID #: 1057

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATHERINE ANDERSON, et al.,
Plaintiffs,
v.
JEFFREY HANSEN,
Defendant.

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Case No. 4:20-CV-00991-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Jeffrey Hansen’s Motion to Stay Pending
Appeal (Doc. 72) and Plaintiffs Katherine and Jason Anderson’s Motion for Certification of
Interlocutory Appeal. (Doc. 77). Both motions are fully briefed and ready for disposition. It is
appropriate to address both motions in the same Memorandum and Order.
I.

BACKGROUND
This case concerns the alleged sexual assault of Plaintiff Katherine Anderson by Defendant

Jeffrey Hansen while at an Aflac work conference in St. Louis, Missouri. (Doc. 1). Plaintiffs bring
claims for battery (Counts I and IV), assault (Count II), false imprisonment (Count III), tortious
interference (Count V), and loss of consortium (on behalf of Plaintiff Jason Anderson) (Count VI).
(Id.). Defendant has raised counterclaims for defamation (Counterclaim Count I) and tortious
interference (Counterclaim Count II), along with associated civil conspiracy claims. (Doc. 33).
Defendant moved to compel arbitration pursuant to arbitration clauses found in Plaintiffs’
Associate’s Agreements with Aflac. (Doc. 47). On July 22, 2021, this Court granted Defendant’s
motion to compel arbitration as to Katherine Anderson’s tortious interference claim (Count V) but

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denied the motion in all other respects. (Doc. 67). Defendant has appealed this decision pursuant
to 9 U.S.C. § 16 (Doc. 71) and now seeks a stay pending appeal. (Doc. 72). Plaintiffs have moved
for certification of interlocutory appeal as to this Court’s decision to compel arbitration on Count
V. (Doc. 77).
II.

ANALYSIS
A. Motion to Stay Pending Appeal (Doc. 72)
Defendant argues that its appeal divests this Court of jurisdiction or, alternatively, the Court

should stay the action pursuant to its inherent powers. (Doc. 73). Plaintiffs “do not oppose
Defendant’s request for a stay pending appeal as a general matter” but contend such request “is
overbroad to the extent that it seeks to delay resolution of Plaintiffs’ pending motion to compel
production” of an independent medical examiner report. (Doc. 79 at 1). 1
The Eighth Circuit has held that “[o]nce a notice of appeal is filed, the district court is
divested of jurisdiction over matters on appeal.” State ex rel. Nixon v. Coeur D’Alene Tribe, 164
F.3d 1102, 1106 (8th Cir. 1999) (citation omitted) (emphasis added). But the Eighth Circuit has
“not definitively ruled whether an appeal from a denial of a motion to compel arbitration divests
the district court of jurisdiction.” Indus. Wire Prods., Inc. v. Costco Wholesale Corp., No. 4:08CV-70-CAS, 2008 WL 2906716, at *1 (E.D. Mo. July 24, 2008). Most courts of appeal to consider
the question have held that a notice of appeal under § 16 of the Federal Arbitration Act (“FAA”)
divests the district court of jurisdiction, but the Second, Fifth, and Ninth circuits have adopted the
minority approach and held that the district court has the discretion to issue a stay. See Morgan v.

Plaintiff Katherine Anderson underwent an independent medical examination (“IME”) pursuant to Fed. R. Civ. P.
35. Defendant has declined to produce the report by Dr. Patricia Westmoreland. Currently pending before this Court
are Defendant’s Motion for Protective Order (Doc. 62) seeking to shield the report and Plaintiffs’ Motion to Compel
production of the report. (Doc. 65). Both motions are fully briefed.

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Ferrellgas, Inc., No. 4:19-CV-910-SRB, 2020 WL 591510, at *1 (W.D. Mo. Feb. 6, 2020)
(describing circuit split). At minimum, the filing of a notice of appeal “is an event of jurisdictional
significance – it confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982).
Without binding Eighth Circuit precedent, this Court is not inclined to hold that
Defendant’s interlocutory appeal entirely divests the Court of jurisdiction. See Art Etc. v. Angel
Gifts, Inc., No. 4:10-CV-385-CRW-RAW, 2011 WL 13232190, at *1 (S.D. Iowa Sept. 12, 2011).
The Court finds, however, that good cause exists to grant Defendant’s motion to stay in part,
especially considering Plaintiffs’ consent to such a partial stay. 2 The Eighth Circuit has recognized
that “the power to stay proceedings is incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants.” Cottrell v. Duke, 737 F.3d 1238, 1248 (8th Cir. 2013) (quoting Landis v. N. Am. Co.,
299 U.S. 248, 254 (1936)). In deciding whether a stay pending appeal is appropriate, courts must
consider the competing interests of the parties, including potential hardship to either party, and
judicial economy. Gould v. Farmers Ins. Exch., 326 F.R.D. 530, 531 (E.D. Mo. 2018) (citation
omitted). In these circumstances, it would potentially waste the parties’ and this Court’s resources
to fully proceed with dispositive motions and trial while the Eighth Court considers whether to
compel arbitration on Plaintiffs’ remaining claims. See Union Elec. Co. v. Aegis Energy Syndicate

Beyond the lack of binding Eighth Circuit precedent, the Court believes that the discovery issues which can proceed
are tangential to the appeal. See Union Elec. Co. v. Aegis Energy Syndicate 1225, No. 4:12-CV-877-JCH, 2012 WL
4936572, at *2 (E.D. Mo. Oct. 17, 2012) (citation omitted) (“A district court retains jurisdiction to adjudicate matters
which are collateral or tangential on appeal.”). But see Blinco v. Green Tree Serv., LLC, 366 F.3d 1249, 1251 (11th
Cir. 2004) (“The only aspect of the case involved in an appeal from an order denying a motion to compel arbitration
is whether the case should be litigated at all in the district court.”).

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1225, No. 4:12-CV-877-JCH, 2012 WL 4936572, at *2 (E.D. Mo. Oct. 17, 2012) (citation omitted)
(granting stay under inherent authority without deciding if court retains jurisdiction).
Pursuant to the Case Management Order, the parties should have completed all fact
discovery including fact witness depositions, and only certain expert depositions remain pending
before the November 15, 2021 deadline for filing dispositive motions. (Doc. 45). As Plaintiffs
note, the parties have already fully briefed the issues concerning production of the IME report. The
Court finds that ruling on the pending discovery motions relating to the IME report (Docs. 62, 65)
is appropriate, considering this requires no further effort by the parties and “any information
obtained will be no less helpful in arbitration than it will be in this Court.” Dickson v. Gospel for
Asia, Inc., No. 5:16-CV-5027, 2017 WL 7731214, at *2 (E.D. Ark. Feb. 8, 2017). It is particularly
relevant that Katherine Anderson has submitted to the extensive medical evaluation, Dr.
Westmoreland has prepared her report, and the parties have fully briefed the issue. In reply,
Defendant cites cases discussing the risk of wasting time and resources by proceeding with
discovery pending appeal. (Doc. 80 at 3-4). But the present circumstances are easily
distinguishable because the extremely narrow additional recovery requested by Plaintiffs – this
Court’s ruling on the pending motions regarding the IME – requires no further effort by either
party. Compare Express Scripts, Inc. v. Aegon Direct Mktg. Servs., Inc., No. 4:06-CV-1410 CAS,
2007 WL 1040938, at *3 (E.D. Mo. Apr. 3, 2007) (“[A]llowing discovery to proceed . . . pending
appeal could be a fruitless effort and a complete waste of this Court’s and the parties’ time and
resources.”).

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The Court also finds that no reasonable grounds exist to delay ruling on Plaintiffs’ fully
briefed motion for certification of interlocutory appeal. 3 Defendant will not suffer prejudice or be
required to expend any unnecessary resources because of this decision. Accordingly, the Court
will grant Defendant’s motion to stay in part, stay all pending discovery and dispositive motion
deadlines in this case, and vacate the current trial setting of March 7, 2022. But the Court will rule
on the pending discovery motions concerning the IME and Plaintiffs’ motion for certification of
interlocutory appeal.
B. Motion for Certification of Interlocutory Appeal (Doc. 77)
Plaintiffs seek certification to appeal this Court’s order compelling arbitration of Katherine
Anderson’s tortious interference claim. Pursuant to 28 U.S.C. § 1292(b), a district court may
certify an order for interlocutory appeal when it determines that such order (1) “involves a
controlling question of law” (2) as to which there is “substantial ground for difference of opinion”
and (3) “that an immediate appeal from the order may materially advance the ultimate termination
of the litigation.” The purpose of the statute is to “provide interlocutory appeal in exceptional cases
in order to avoid protracted and expensive litigation.” Paschall v. Kansas City Star Co., 605 F.2d
403, 406 (8th Cir. 1979). Interlocutory appeal should be permitted “sparingly and with
discrimination,” given it has “long been the policy of the courts to discourage piece-meal appeals
because most often such appeals result in additional burdens on both the courts and the litigants.”
White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994) (quoting Control Data Corp. v. Int’l Bus. Machs.
Corp., 421 F.2d 323, 325 (8th Cir. 1970)). The movant “bears the heavy burden of demonstrating
that the case is an exceptional one in which immediate appeal is warranted.” Id. (citing Bank of

In reply, Defendant indicates he has “no objection to this Court ruling on” the motion for certification. (Doc. 80 at
5). It is unclear how Defendant reconciles this Court supposedly lacking any jurisdiction with ruling on the motion
for certification.
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New York v. Hoyt, 108 F.R.D. 184, 189 (D.R.I. 1985)). “It is within the trial court’s discretion to
grant or deny a motion for interlocutory appeal, and also within the discretion of the court of
appeals to certify the appeal.” Alternative Med. and Pharmacy, Inc. v. Express Scripts, Inc., No.
4:14-CV-1469 CDP, 2016 WL 827934, at *1 (E.D. Mo. Mar. 3, 2016). The requirements of §
1292(b) are jurisdictional. White, 43 F.3d at 376 (citation omitted).
Defendant contends that § 1292(b) certification is contrary to the FAA’s strong policy in
favor of arbitration, especially considering that the FAA “permits the immediate appeal of orders
denying arbitration, 9 U.S.C. § 16(a), but forbids the immediate appeal of orders compelling
arbitration” per 9 U.S.C. § 16(b). Adler v. Dell, Inc., No. 08-CV-13170, 2009 WL 646885, at *1
(E.D. Mich. Mar. 10, 2009) (emphasis in original). Most courts have concluded that the high
burden for certification of an interlocutory appeal “is even more stringent where the Court has
compelled arbitration, given the [FAA’s] objective of ‘moving the parties to an arbitrable dispute
out of court and into arbitration as quickly and easily as possible.’” Selden v. Airbnb, Inc., No. 16CV-933 (CRC), 2016 WL 7373776, at *1 (D.D.C. Dec. 19, 2016) (quoting Green Tree Fin. Corp.
– Alabama v. Randolph, 531 U.S. 79, 85-86 (2000)); see also Zechman v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., No. 89 C 2470, 1990 WL 172726, at *1 (N.D. Ill. Oct. 30, 1990) (cleaned
up) (“Consistent with the strong federal policy favoring arbitration, a direct appeal may not be
taken from an interlocutory order compelling arbitration, unless authorized by § 1292(b).”).
This Court declined to compel arbitration on five of six counts in Plaintiffs’ complaint
(Doc. 67) and Defendant has appealed this Order. (Doc. 71). Plaintiffs now seek certification to
appeal the Court’s decision to compel arbitration on Count V. Typically, courts “discourage piecemeal appeals” through § 1292(b) certification “because most often such appeals result in additional
burdens on both the court and the litigants.” White, 43 F.3d at 376; see also S.E.C. v. Credit

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Bancorp, Ltd., 103 F. Supp. 2d 223, 226 (S.D.N.Y. 2000) (citation omitted) (“The institutional
efficiency of the federal court system is among the chief concerns underlying Section 1292(b).”).
In this case, however, the Eighth Court will address virtually identical legal issues when
considering Defendant’s appeal, and this case will be mostly stayed pending the Eighth Circuit’s
decision per Defendant’s motion. Therefore, concerns regarding judicial efficiency are less
relevant here.
Under normal circumstances, Plaintiffs’ motion would not present a close question
considering the stringent standard for § 1292(b) certification, particularly as to orders compelling
arbitration. Defendant’s appeal as of right is the sole reason that Plaintiffs’ motion presents a more
difficult question. Even in these unique circumstances, however, the Court cannot grant
certification because Plaintiffs do not seek to appeal a “controlling question of law” as required
under § 1292(b). Controlling questions of law appropriate for certification are generally limited to
those which permit the court of appeals to “rule on a pure, controlling question of law without
having to delve beyond the surface of the record in order to determine the facts.” Missouri State
Conf. of the Nat’l Assoc. for the Advancement of Colored People v. Ferguson-Florissant Sch. Dist.,
No, 4:14-CV-2077 RWS, 2016 WL 5390946, at *2 (E.D. Mo. Sept. 27, 2016) (citation omitted);
see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (Ҥ 1292(b)
appeals were intended, and should be reserved, for situations in which the court of appeals can rule
on a pure, controlling question of law without having to delve beyond the surface of the record in
order to determine the facts.”); Houston v. NPC Intl’l, Inc., No, 13-1160-CV-W-GAF, 2014 WL
12535302, at *2 (W.D. Mo. May 23, 2014) (internal quotations omitted) (Controlling question
must “be a matter of pure law on an abstract legal issue.”). In other words, a controlling question
of law also means a pure question of law, “not a mixed question of law and fact or an application

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of law to a particular set of facts.” Smith v. Nerium Int’l, Inc., No. SACV 18-1088 JVS (PLAx),
2019 WL 7205889, at *2 (C.D. Cal. Dec. 9, 2019) (citation omitted).
As discussed extensively in this Court’s Order (Doc. 67 at 11-12), the arbitration clauses
at issue in the Associate’s Agreements between Plaintiffs and Aflac apply to third-party
beneficiaries including “past and present . . . employees . . . who are alleged to be liable or may be
liable in any manner to either party based upon the same allegations made against a party to this
[Associate’s] Agreement.” (Doc. 47-4 at 19, 43) (emphasis added). This Court considered whether
Defendant, an Aflac employee at the time of the events underlying this litigation, was alleged to
be liable based “upon the same allegations” made against Aflac. The Court noted that Plaintiffs’
settlement agreement with Aflac specifically released claims for tortious interference and
accordingly concluded that the arbitration clause “is susceptible to an interpretation that Defendant
is ‘alleged to be liable . . . based upon the same allegations made against’ Aflac as to the tortious
interference claim.” (Doc. 67 at 11-12). Plaintiffs contend that a pure question of law exists on this
issue, especially considering Aflac apparently cannot be held liable for tortious interference with
its own contract under Colorado law. (Doc. 77-1 at 3-4).
Yet this is precisely the sort of fact-intensive, contractual interpretation issue not
appropriate for certification. Courts have consistently held that questions of contractual
interpretation should not be certified under § 1292(b). See Ahrenholz v. Bd. of Trs. of Univ. of
Illinois, 219 F.3d 674, 676 (7th Cir. 2000) (“We also think . . . that the question of the meaning of
a contract, though technically a question of law when there is no other evidence but the written
contract itself, is not what the framers of section 1292(b) had in mind either.”); Aristocrat Leisure
Ltd. v. Deutsche Bank Tr. Co. of Americas, 426 F. Supp. 2d 125, 128 (S.D.N.Y. 2005) (citations
omitted) (“While the meaning of a contract generally is considered to be a question of law for the

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court, a question of contract interpretation typically is not a ‘controlling question of law’ that serves
as a basis for interlocutory appeal.”). Addressing the question of law posed by Plaintiffs’ motion
would require the Eighth Circuit to delve into Plaintiffs’ correspondence and settlement agreement
with Aflac and then apply such particular facts to the language of the Associate’s Agreements.
This is not an issue which the court of appeals “could decide quickly and cleanly without having
to study the record.” Ahrenholz, 219 F.3d at 677. This is a contractual interpretation issue highly
dependent on the facts of this case. Compare Delock v. Securitas Sec. Servs. USA, Inc., 883 F.
Supp. 2d 784, 791 (E.D. Ark. 2012) (certifying order compelling arbitration for interlocutory
appeal where “[n]o facts are disputed” and appeal concerned apparent conflict between National
Labor Relations Act and FAA).
In reply, Plaintiffs accurately note that the Eighth Circuit has offered limited guidance
regarding what constitutes a “controlling question of law” under § 1292(b). (Doc. 81 at 4-5).
Plaintiffs cite In re Dicamba Herbicides Litigation for this proposition. No. 1:18-MD-2820-SNLJ,
2018 WL 3619509, at *4 (E.D. Mo. July 30, 2018). Plaintiffs neglect to mention, however, that
the In re Dicamba Herbicides Litigation court proceeded to cite the Seventh and Eleventh circuits
(as this Court has done) and find that “[w]ith no Eighth Circuit guidance to look to,” the “line
between pure questions of law that can be decided without digging into the record and case-specific
questions that ask whether the district court properly applied settled law to specific facts . . . strikes
the Court as a reasonable and prudent one.” Id. at 5. This Court agrees that such approach is
consistent with the purposes of § 1292(b) and accordingly holds that Plaintiffs’ motion does not
present a controlling question of law because it merely requests application of settled law to
specific facts.

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Finally, the Court also finds that an immediate appeal would not “materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). As it stands, the case will effectively
be stayed pending the Eighth Circuit’s ruling on Defendant’s appeal while Katherine Anderson
can proceed with arbitration on her tortious interference claim. Certification of appeal as to this
Court’s decision to compel arbitration on Count V would only delay arbitration and not materially
advance the litigation in any sense. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 22 (1983) (“Congress’s clear intent” when enacting the FAA was “to move the parties
to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.”). 4
Because Plaintiffs have not met the stringent requirements of § 1292(b) in seeking to appeal this
Court’s Order compelling arbitration as to Count V, the motion for certification of interlocutory
appeal will be denied. See Union Cty., Iowa v. Piper Jaffray & Co., Inc., 525 F.3d 643, 645-46
(8th Cir. 2008) (internal quotations and citations omitted) (“Because the requirements of § 1292(b)
are jurisdictional, if the case does not present circumstances satisfying the prerequisites for
granting certification, this court cannot allow the appeal.”).
Accordingly,
IT IS HEREBY ORDERED that Defendant Jeffrey Hansen’s Motion to Stay Pending
Appeal (Doc. 72) is GRANTED in part. This case is STAYED provided that this Court will rule
on Plaintiffs’ Motion for Certification of Interlocutory Appeal (Doc. 77) and the pending, fully

4
Plaintiffs argue, and the Court recognizes, that the Eighth Circuit could issue a decision affirming this Court but
suggesting that arbitration should not have been compelled on the tortious interference claim. (Doc. 77-1 at 4-5). The
Eighth Circuit could affirm while holding, for example, that Defendant waived his right to compel arbitration on all
claims. Such a theoretical possibility does not mean, however, that certification would materially advance the
termination of this litigation. If the Eighth Circuit renders such a decision, it may become appropriate for Plaintiffs to
seek reconsideration of this Court’s decision compelling arbitration on Count V.

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briefed discovery motions concerning the IME. (Docs. 62, 65). The parties shall promptly advise
the Court of any material developments in the appeal process.
IT IS FURTHER ORDERED that the trial setting of March 7, 2022 is hereby
VACATED and will be reset if necessary once the Eighth Circuit issues its mandate.
IT IS FINALLY ORDERED that Plaintiffs Katherine and Jason Anderson’s Motion for
Certification of Interlocutory Appeal (Doc. 77) is DENIED.
Dated this 7th day of September, 2021.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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