BNSF Railway Company v. Feit
ORDER denying (49) Motion to permit interlocutory appeal of order certifying question to Montana Supreme Court in case 6:10-cv-00054-DWM; denying (46) Motion to permit interlocutory appeal of order certifying question to Montana Supreme Court in case 6:11-cv-00001-DWM. Signed by Judge Donald W. Molloy on 9/12/2011. Associated Cases: 6:10-cv-00054-DWM, 6:11-cv-00001-DWM (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BNSF RAILWAY COMPANY,
a Delware corporation,
CV 10-54-H-DWM and
BNSF Railway Company filed a motion (dkt # 49) asking this Court to
amend its Certification Order (dkt # 47) to permit BNSF to pursue an interlocutory
appeal of “whether the certification of a state law issue to a state supreme court
effectively denies BNSF its constitutional and statutory right to diversity
jurisdiction.” (Dkt # 47.) For the reasons stated below, this motion is denied.
28 U.S.C. 1292(b) allows a party to pursue an interlocutory appeal when the
court is “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.” BNSF argues that this Court’s decision to certify a Montana state law
issue to the Montana Supreme Court is such an issue. The argument is circuitous.
The controlling question is one of Montana law which can only be definitively
answered by the Montana Supreme Court. That issue cannot be subsumed by an
interlocutory appeal of whether the Montana Supreme Court, or this Court sitting
in diversity, should answer the controlling questions of Montana law.
When exercising diversity jurisdiction, a federal district court may in its
discretion certify questions of Montana state law to the Montana Supreme Court.
See Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974)). The Montana
Supreme Court may accept such questions if “(a) the answer may be determinative
of an issue in pending litigation in the certifying court; and (b) there is no
controlling appellate decision, constitutional provision, or statute of this state.”
Mont. R. App. P. 15(3). Certifying questions enables a court to “obtain
authoritative answers to unclear questions of state law” and “‘save[s] time, energy,
and resources and helps build a cooperative judicial federalism.’” Toner for Toner
v. Lederle Laboratories, Div. of American Cynamid Co., 779 F.2d 1429, 1432–33
(9th Cir. 1986)(quoting Lehman Brothers, 416 U.S. at 391).
Here, the decision to certify to the state court an unsettled and determinative
issue of state law is within this Court’s discretion. BNSF provides no authority for
its conclusion that certification of this issue infringes on BNSF’s right to diversity
jurisdiction. In fact, the ability to certify important, undecided issues to the state
supreme court is an important aspect of diversity jurisdiction, particularly where
the legal issue is significant and presents “important public policy ramifications.”
Kremen v. Cohen, 325 F.3d 1035, 1037–38 (9th Cir. 2003); see also Toner for
Toner, 779 F.2d at 1432–33. BNSF has not shown that 28 U.S.C. 1292(b) applies.
The decision to certify is not a controlling question of law nor is there any
“substantial ground for difference of opinion” about the certification of this issue.
28 U.S.C. 1292(b).
IT IS HEREBY ORDERED that the Motion to Permit Interlocutory Appeal
of Order Certifying Question to Montana Supreme Court and Request for
Expedited Consideration (dkt #49) is DENIED.
Dated this 12th day of September, 2011.
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