TRAVELERS CASUALTY AND SURETY COMPANY et al v. BECTON DICKINSON AND COMPANY
Filing
63
MEMORANDUM OPINION. Signed by Judge John Michael Vazquez on 7/12/2016. (nr, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRAVELERS CASUALTY AND SURETY
COMPANY and TRAVELERS PROPERTY
AND CASUALTY COMPANY OF AMERICA,
Civil Action No. 14-44 10
Plaintiffs,
MEMORANDUM
OPINION
V.
BECTON DICKINSON AND COMPANY,
Defendant.
John Michaci Vazguez, U.S.D.J.
On April 5,2016, the Court denied Plaintiffs’. Travelers Casualty and Surety Company
and Travelers Property and Casualty Company of America (collectively “Plaintiffs”), motion for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. D.E.
43. Plaintiffs now move the Court to reconsider its decision or, alternately, to indicate to the
Third Circuit that an interlocutory appeal is warranted. D.E. 45. Defendant Becton Dickinson
and Company (“Defendant”) filed a brief in opposition to Plaintiffs’ motion (D.E. 46) and
Plaintiffs filed a reply (D.E. 51). The Court reviewed all of the arguments made in support or in
opposition to the motion, and considered the motion without oral argument pursuant to L. Civ. R.
78.1(b). For the reasons stated below, Plaintiffs’ motion for reconsideration is denied and the
Court will not indicate that an interlocutory appeal is warranted.
Background
This case involves an insurance coverage dispute. For the relevant years, Plaintiffs
provided Defendant with “occurrence-based” insurance policies. The policies covered the years
1978 through 1999. Am. Comp. ¶fl 33,42 (D.E. 4). In their amended complaint, Plaintiffs
allege that Defendant settled several lawsuits and belatedly (by years) tendered the lawsuits to
Plaintiffs for coverage.’ Id. ¶flJ 13-32, 52-62. Plaintiffs then sued Defendant for declaratory
‘The underlying lawsuits consisted of class actions, with the first being filed in 2005, and with
settlements occurring in 2009 and 2013. The underlying lawsuits also included an anti-trust
action originating in 1998 (resulting in dismissal), a related anti-trust action filed in federal court
in 2001, and a 2004 settlement. Plaintiffs allege that Defendant did not tender the class action
lawsuits until 2013 or the anti-trust matter until 2014. Am. Comp. tJ 13-32, 52-62.
relief, asserting that Defendant’s breaches of the policies precluded Defendant from recouping
any amounts related to the underlying lawsuits.
Plaintiffs thereafter moved for a judgment on the pleadings pursuant to Rule 12(c)
claiming, among other things, that Defendant breached the notice provisions of the insurance
policies. D.E. 12-I at 7-27. Before the motion was decided, Plaintiffs submitted a letter
attaching a recent decision of the New Jersey Supreme Court in Templo Fuente Dc Vida
Corporation v. National Union Fire Insurance Company of Pittsburgh, 224 N.J. 189 (2016).
D.E. 35. Plaintiffs argued that the Teniplo [‘ziente decision was “controlling authority” that
entitled it to prevail on the pending motion. Id. at 1-3. Defendant responded that the New Jersey
Supreme Court’s opinion did not change the equation because, among other things, it concerned
a “claims made” insurance policy rather than the “occurrence-based” policy at issue in the
current matter. D.E. 36 at 1-2.
As noted, the Court denied Plaintiffs’ motion forjudgment on the pleadings on April 5,
2016. D.E. 43. The Court explicitly acknowledged the supplemental submissions concerning
the Tenzplo Fuente decision and, in fact, directly cited the case. Id. at 1-2. In denying Plaintiffs’
motion, the Court noted the difference between “claims made” and “occurrence-based” policies
under New Jersey law, that it could find no New Jersey cases that actually applied Plaintiffs’
argument concerning the appreciable prejudice doctrine,2 and that there were numerous material
issues of fact in dispute. Id. at 1-3.
Plaintiffs bring the current motion for reconsideration, arguing that the Court overlooked
Templo Fuente as well as other cases cited in its original briefs (despite the fact that Court
expressly referred to all submissions of the parties and actually cited the Teniplo Fuente case in
its order). D.E. 45-I at 1-9. Alternately, Plaintiffs ask the Court. pursuant to 28 U.S.C. § 1292,
to indicate to the Third Circuit that an interlocutory appeal is warranted. Id. at 9-12.
Defendant replies that neither request is appropriate. D.E. 46. As to the motion for
reconsideration, Defendant asserts that mere disagreement with a court’s decision is insufficient
to warrant reconsideration and that Plaintiffs cannot meet the requisite legal standard for such a
motion. Id. at 1-7. Defendant similarly argues that Plaintiffs fail to meet the necessary
requirements for an interlocutory order under 28 U.S.C. § 1292. Id. at 7-11.
Following the initial briefing, Plaintiffs submitted additional information to the Court,
D.E. 59, to which Defendant responded, D.E. 62. Plaintiffs indicated that Plaintiff Travelers
Property Casualty Corp. merged with the St. Paul Companies in April 2004. Thereafter, St. Paul
Mercury Insurance Company (which Plaintiffs indicate is their affiliate as a result of the merger),
issued insurance policies to Defendant for the period of October 2005 through October2011.
Plaintiffs indicate that “[un applying for and procuring those policies, Defendant provided
information regarding the existence of the underlying lawsuits and the 2004 and 2009 underlying
settlements at issue to the underwriting personnel of St. Paul Travelers[.]” D.E. 59 at 1.
Plaintiffs claim that this newly-discovered information has no impact on it current motion. Id. at
1-2.
2
The doctrine is explained later in this opinion.
7
Motion for Reconsideration
In the District of New Jersey, motions for reconsideration can be made pursuant to Local
Civil Rule 7.1(i). The rule provides that such motions must be made within 14 days of the entry
of an order, and Plaintiffs have complied with the time requirement. Substantively, a motion for
reconsideration is viable when one of three scenarios is present: (I) an intervening change in the
controlling law, (2) the availability of new evidence not previously available, or (3) the need to
correct a clear error of law or prevent manifest injustice. Carmichael v. Everson, No. 03-4787,
2004 WL 1587894, at *1 (D.N.J. May 21, 2004) (citations omitted). A motion for
reconsideration, however, does not entitle a party to a second bite at the apple. Therefore, a
motion for reconsideration is inappropriate when a party merely disagrees with a court’s ruling
or when a party simply wishes to re-argue or re-hash its original motion. Sc/i. Specialty, Inc. v.
Ferrentino, No. 14-4507, 2015 WL 4602995, *23 (D.N.J. July 30, 2015); see also Florham
Park Chevron, Inc. i’. Chevron USA., 680 F. Supp. 159, 162 (D.N.J. 1988).
Neither an intervening change in the controlling law nor the availability of new evidence
is asserted by Plaintiffs. Instead, Plaintiffs argue that the Court overlooked “controlling New
Jersey precedent” and thereby committed a “clear error of law.” D.E. 45-I at 2. Yet, Plaintiffs
cite no new case law other than what was submitted in their prior papers. Plaintiffs appear to
erroneously conflate the Court’s failure to expressly address all of their case citations with the
Court overlooking those decisions. As noted, the Court’s April 5 order expressly referred to all
of the parties’ filings regarding the original motion. Indeed, the Court explicitly cited to Templo
Fuente. D.E. 43 at 2. Thus, because Plaintiffs cannot point to any law that the Court overlooked
or to any clear error of law, its motion for reconsideration is denied.
However, for purposes of the record, the Court will fttrther explain the deficiencies in
Plaintiffs’ argument. At the outset, it is important to note the ffindamental difference between
insurance policies that are “occurrence-based” versus those that are “claims made” (also
sometimes referred to as “discovery policies). In Zuckerman v. National Union Fire Insurance
Company, 100 N.J. 304, 310 (1985), the Supreme Court of New Jersey explained the distinction
between the two types of policies as follows:
The standard definitions for “discovery” and “occurrence” policies appear in
SanutelN. Zarpas, Inc. v. Morrow, 215 F.Supp. 887 (D.N.J. 1963):
[T]here are two types of Errors and Omissions Policies: the
“discovery” policy and the “occurrence” policy. In a discovery
policy the coverage is effective if the negligent or omitted act is
discovered and brought to the attention of the insurance company
during the period of the policy, no matter when the act occurred.
In an occurrence policy the coverage is effective if the negligent or
omitted act occurred during the period of the policy, whatever the
date of discovery. [Id. at 888.]
3
Variations on this definitional theme pervade the case law. The thndamental
distinction between the two types of policies has been expressed in different terms
and with differences in emphasis. For example, the court in Brander v. Na hors.
443 F.Supp. 764 (N.D. Miss.), affd, 579 F.2d 888 (5th Cir. 1978), distinguished
these policy types based on the period for which coverage is provided:
Basically, the “claims made” policy would provide unlimited
retroactive coverage and no prospective coverage at all, while the
“occurrence” policy would provide unlimited prospective coverage
and no retroactive coverage at all. [fd. at 767.]
“Claims made” and “occurrence” policies may also be distinguished on the basis
of the difference in the peril insured. One commentator has noted:
In the “occurrence” policy, the peril insured is the “occurrence”
itself. Once the occurrence takes place, coverage attaches even
though the claim may not be made for some time thereafter. While
in the “claims made” policy, it is the making of the claim which is
the event and peril being insured and, subject to policy language,
regardless of when the occurrence took place. [S. IQoll, supra, 13
Forum at 843.]
Zzickerman, 100 N.J. at 310-Il.
Thus, a critical difference between the two types of policies is that “claims made”
insurance policies by definition, only cover claims that are actually made by the insured during
the policy period. Timely notification by the insured of the claim is part and parcel of the policy
itself. Id. at 324 (“[T]he event that invokes coverage under a ‘claims made’ policy is transmittal
of notice of the claim to the insurance carrier.”). By comparison, “occurrence-based” insurance
covers pertinent events that occur while the policy is in effect, even if the insured does not learn
of the claim until after the policy has expired. The New Jersey Supreme Court has recognized
this crucial distinction. The Court has observed that an extension of the notice period in a
“claims made” policy would effectively extend the period of insurance coverage. Gazis
Miller, 186 NJ. 224, 229 (2006). This expansion of coverage would be antithetical to “claims
made” policies since such policies are priced with the limited period of coverage in mind.
Zuckerman, 100 N.J. at 324 (“[S]uch an expansion in the coverage provided by ‘claims made’
policies would significantly affect both the actuarial basis upon which premiums have been
calculated and, consequently, the cost of ‘claims made’ insurance.”). On the other hand, the
New Jersey Supreme Court has indicated that since notice in “occurrence-based” policies is
“subsidiary to the event that invokes coverage[,]” notice should be “liberally” construed. Gazis,
186 N.J. at 229-33 (citing Zuck-ennan, 100 N.J. at 324).
.
Due to this essential difference between the two types of policies, in matters stemming
from “occurrence-based” policies, New Jersey courts have required that an insurer show not only
late notice of a claim by an insured but also that the insurer suffered “appreciable prejudice” as a
result of the late notice. Id. at 233. The standard was first announced by the New Jersey
4
Supreme Court in Cooper i’. Government Employees Insurance Company. 5 1 N.J. 86, 94 (1968).
Appreciable prejudice is determined by analyzing two separate variables. The first is whether
the insured’s “substantial rights have been irretrievably lost” by the insured’s late notice.
Sagendordv Selective Ins. Co. ofAm., 293 N.J. Super 81,93 (App. Div. 1996) (citation
omitted). Notably, an insured’s inability to investigate a claim in its normal course fails to meet
this requirement. Id. The second factor in evaluating appreciable prejudice concerns the
likelihood of the success of the insurer in defending the underlying claims lodged against the
insured. Id.
With the key difference between “claims made” and “occurrence-based” policies in mind,
the Court turns to Plaintiffs’ argument. Plaintiffs contend that the appreciable prejudice standard
does not apply here. Specifically, Plaintiffs claim that this “Court overlooked the ‘sophisticated
insured’ exception to the appreciable prejudice rule mandated by Templo Fuente[.]” D.E. 45-I at
2-6. Plaintiffs further assert that Templo Fuente is “controlling law” and that this Court’s April 5
order was in “direct conflict” with the decision. Id. Plaintiffs are incorrect for two reasons.
First. Templo Fuente did not apply to “occurrence-based” policies, which are at issue in this case.
Second, and more importantly, the pertinent controlling decision of the New Jersey Supreme
Court expressly rejected Plaintiffs’ position. Plaintiffs do not argue, in good faith, for a change
to the law in New Jersey. Instead, Plaintiffs boldly assert that their position reflects binding
precedent in New Jersey. Plaintiffs are in error.
Tcmplo Fuente concerned a “claims made” policy and its holding was so limited. 224
N.J. at 193 (“We hold that because this Directors and Officers ‘claims made”policv was not a
contract of adhesion but was agreed to by sophisticated parties, the insurance company was not
required to show that it suffered prejudice before disclaiming coverage on the basis of the
insured’s failure to give timely notice of the claim.”) (emphasis added). As a result, because
Templo Fuente did not address an “occurrence-based” policy, it is not controlling law in this
matter.3
Critically, however, in Gazis, the Supreme Court of New Jersey did directly address
Plaintiffs’ current claim that is, whether there is a sophisticated insured exception to the
appreciable prejudice standard in an “occurrence-based” policy. The Court determined that the
Appellate Division “correctly discounted whether [the insured]
could be described as
sophisticated, or whether the contract was a contract of adhesion.” 186 N.J. at 232 (emphasis
added). The Court in Gazis continued that neither the sophistication of the parties nor the fact
that the insurance contract was one of adhesion were “essential conditions” in deciding whether
to apply the appreciable prejudice standard to “occurrence-based” policies. Id, In short, the New
Jersey Supreme Court expressly rejected the very proposition which Plaintiffs now claim is
controlling and binding on this Court. Moreover, in Gazis, the lone dissenting opinion urged that
there should be an exception to the appreciable prejudice standard for “occurrence-based”
—
.
.
.
Plaintiffs’ reliance on Navigators Specialty Insurance i’. Pharmanet Development Group,
Incorporated, No. 15-cv-6285, 2016 WL 1228848 (D.N.J. March 29. 2006) is also misplaced. In
that matter, Judge Sheridan ruled that Templo Fuente did not apply because the insured had not
provided late notice. Id. at *5 Judge Sheridan, however, did not address the issue in this case
the difference between “claims made” and “occurrence-based” policies.
—
5
policies if the insured is sophisticated and the contract was not one of adhesion. Id. at 233-38
(Rivera-Soto, J., dissenting). Thus, while Plaintiffs’ current argument was championed by the
lone dissenter, it was not accepted by the majority of the Supreme Court. And the Templo
Fuente Court nowhere indicated that it was overturning the decision in Gazis, which is
controlling precedent as to “occurrence-based” policies.
While failing to acknowledge this vital point from Gazis, Plaintiffs nevertheless argue
that the Court actually overlooked Gazis because the New Jersey Supreme Court indicated in that
matter that the appreciable prejudice standard does not automatically apply to “occurrencebased” policies. D.E. 45-1 at 7. In its April 5 order, the Court stated the following:
The Court was unable to find any case involving an alleged violation of an
occurrence-based policy in which the appreciable prejudice doctrine did not
apply. In addition, the appreciable prejudice doctrine has been applied to insured
corporations, and is not limited to coverage disputes for tortfeasors. See, e.g.,
Chern. Learnan Tank Lines, Inc. v. Aetna Cas. & Siw C’o., 89 F.3d 976, 996 (3d
Cir. 1996) (applying doctrine in commercial environmental clean-up dispute
between insurance company and tank truck company); Pfizer, Inc. i’. Enips. Ins.
Of Wausau, 154 N.J. 187, 206 (1998) (in conflict of law analysis acknowledging
that “appreciable prejudice” doctrine would apply to late-notice dispute in an
environmental insurance coverage case involving insurance company and
phanTlaceutical company).
D.E. 43 at 2-3.
The Court’s observation was accurate. The Court has found no New Jersey case, nor
have Plaintiffs cited to any, in which a New Jersey court has ruled that the appreciable prejudice
standard would not be applied in a case brought pursuant to an “occurrence-based” policy. The
Third Circuit has recognized as much. See, e.g., British Ins. Co. of Cavrnan v. Safety Nat. Cas.,
335 F.3d 205, 212 (3d Cir. 2003) (“We begin our analysis by acknowledging the well-settled
New Jersey rule that a primary insurance carrier must show a likelihood of appreciable prejudice
). Plaintiffs can only point to language in Gazis which suggests that New Jersey courts may
not always apply the appreciable prejudice standard to a certain “occurrence-based” policy.
Unfortunately for Plaintiffs, the two considerations it posits the sophistication of the parties
and the fact that its policies were not contracts of adhesion were found by the Supreme Court
of New Jersey in the very same case not to be essential conditions as to whether the appreciable
standard would apply.4 Gazis, 186 N.J. at 232.
—
—
Of note, the Court in Gazis said of the appreciable prejudice standard in “occurrence-based”
policies:
1
New Jersey courts have applied the Cooper prejudice rule in various other
contexts. See, e.g., Pfizer v. Employers Ins, of Wausati, 154 N.J. 187, 206, 712
A.2d 634 (1998) (stating as general proposition that New Jersey requires a
showing of prejudice before insurance can be denied due to late notification);
Sagendo,fv. Selective Ins. Co. ofAmerica, 293 N.J .Super. 81, 94—95, 679 A.2d
6
Plaintiffs also claim that the Court overlooked the decision in Bacon v, American
Insurance Company, 131 N.J. Super 450 (Law. Div. 1974). aff’d, 138 N.J. Super. 550 (App. Div.
1976) concerning a “no-action” clause in an insurance contract. DR 45-1 at 7-8. Bacon
concerned a coverage dispute in which the insured had sued the insurer. 131 N.J. Super. at 45354. The insurance contract in question contained a no-action clause which prohibited the insured
from suing the insurer unless the insured had complied with all the terms of the policy. Id. at
458-60. Because the insured had not complied with the material terms of the policy, the court in
Bacon concluded that the no-action clause likewise prohibited the suit before it because the
insured had initiated the matter. Id. at 460.
In this case, the policies also had no-action clauses. Am. Compl. ¶ 41 (“No action shall
lie against the [Plaintiffs] unless . . . .“); ¶ 50 (“No person or organization has the right . . . to sue
us . . . unless all of its term have been filly complied with.”). Yet, the decision is Bacon is
unavailing to Plaintiffs for a simple reason Defendant did not sue Plaintiffs. Plaintiffs brought
suit in this matter. Thus, the no-action clauses here are inapplicable and Bacon is inapposite.5
—
Finally, as the Court indicated in its April 5 order, there are material issues in this case
which will need to be explored in discovery before they are properly resolved, either by way of
summary judgment or trial. For example, Plaintiffs (again) urge the Court to rule on the
pleadings that Plaintiffs are not liable for any pre-tender costs and expenses, citing SL Industries,
Incorporatedv. American Motorists insurance C’ompanv. 128 N.J. 188 (1992). D.E. 45-1 at 8-9.
SL Industries, however, was the result of a summary judgment motion. 128 N.J. at 196.
Moreover, the Court’s own independent research also indicated that such issues were addressed
following discovery at the summary judgment stage. See, e.g., Ohaus v. Continental casualn’
Insurance Company, 292 N.J. Super. 501 (App. Div. 1996). Defendant has indicated that there
are other provisions in the relevant insurance policies, such as unintentional errors and omission
709 (App. Div. 1996) (holding that under both “garage” policy and umbrella
insurance policy, insurer must show prejudice from service station insured’s
failure to provide notice “as soon as practicable” for coverage for environmental
spill); Solvents Recovery Sen’. ofNew England v. Midland Ins. Co., 218 N.J.
Super. 49, 5 1—55, 526 A.2d 1112 (App. Div. 1987) (holding that general liability
insurer required to show prejudice before late notification of occurrence, claim or
suit will bar coverage for environmental cleanup); Costagliola v. Lawyers Title
Ins. Corp., 234 N.J. Super. 400, 406, 560 A.2d 1285 (Ch. Div. 1988) (finding that
title insurance provider must show prejudice before coverage will be avoided for
breach of five-day notice requirement).
186 N.J. at 230. The Court did not disavow the cases or indicate that they were wrongly decided.
Of course, even if Defendant had sued Plaintiffs, the no-action clauses would only potentially
be applicable if the Court first found that Defendant had breached its insurance policies with
Plaintiffs. The Court is in no position to make such a finding at this early stage of the case and
without the benefit of a filly-developed record.
7
endorsements, as well as issues concerning whether there was an actual breach of the policies.
Plaintiffs’ supplemental filing with the Court, D.E. 59, indicates that it has recently learned that
St. Paul Travelers was apprised of the underlying suits and settlements well prior to the 2013 and
2014 dates alleged in the Complaint. Plaintiffs did not inform the Court of precisely when
Defendant provided the notice, but the Court assumes that it was in the timeframe of postOctober 2004 through 2010, given the dates in Plaintiffs’ letter. Plaintiffs acknowledge that they
only located this information in response to a discovery request from Defendant. While
Plaintiffs argue that the newly-discovered information has “no bearing’ on the current motion,
the Court disagrees. Discovery needs to be taken so that the record can be developed. At that
point the issues will be ripe for resolution, either by way of summaryjudgment or trial.
Interlocutory Appeal
Plaintiffs alternately request that the Court insert language in an order indicating that this
matter is appropriate for an interlocutory appeal. 28 U.S.C. § 1292(b) provides in relevant part:
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.
The Court of Appeals which would have jurisdiction of an appeal of such action
may thereupon, in its discretion, penTlit an appeal to be taken from such order[.j
A district court may certify a non-final order for interlocutory appeal where: (I)
the order involves a controlling issue of law; (2) there is substantial ground for difference
of opinion as to the question of law; and (3) the appeal would have the potential to
materially advance the ultimate termination of the litigation. My/an Pharnis. Inc. v.
C’elgene Corp., No. 14-2094, 2015 WL 409655, at * I (D.N.J. Jan. 30, 2015). The burden
is on the movant to demonstrate that all three requirements are met. Piacentile v. Thorpe,
No. 12-7156, 2016 WL 3360961, at *2 (D.N.J. June 8,2016). However, even if all three
criteria are met, “the district court may still deny certification, as the decision is entirely
within the district court’s discretion.” Id. Further, Section 1292(b) “is to be used
sparingly and only in exceptional circumstances that justify a departure from the basic
policy of postponing review until the entry of the final order.” Acosta i’. Face Local I300 Health Fund. No. 04-3885, 2007 WL 1074093, at *1 (D.N.J. Apr. 9,2007) (internal
quotation marks omitted).
Plaintiffs argue that the April 5 order involves two questions of law that are appropriate
for interlocutory appeal: (1) whether an “appreciable prejudice” inquiry applies to all
“occurrence-based” policies; and (2) whether the “appreciable prejudice” inquiry is only
available to policyholders that have acted in “good faith.” D.E. 45-1 at 10-12. The Court denies
Plaintiffs’ request to submit an interlocutory order for both questions.
The first question is easily addressed. A substantial ground for difference of opinion
exists if “there is a genuine doubt as to the correct legal standard.” Kapossy ‘i’. McGraw-Hill,
8
Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996). “Mere disagreement” with the court’s decision is
not sufficient. Id. As discussed, there is no genuine doubt that the appreciable prejudice inquiry
applies to the “occurrence-based” policy at issue here. The Court has found no New Jersey case,
nor have Plaintiffs cited to any, in which a New Jersey court has ruled that the appreciable
prejudice standard would not be applied in a case brought pursuant to an “occurrence-based”
policy. Moreover, to the extent the Gazis Court indicated in dicta that New Jersey courts may
not always apply the appreciable prejudice standard, it also indicated that the bases cited by
Plaintiffs (sophistication and contracts that are not of adhesion) were not essential conditions.
As for the second question, the Court recognized in its April 5 order that “New Jersey
courts have indicated that there is an open issue as to whether there is a ‘good faith’
prequalification to the appreciable prejudice doctrine.” D.E. 43 at 3. While there is an absence
of controlling law on this issue, an interlocutory appeal will not materially advance litigation.
An appeal materially advances litigation if it would “eliminate the need for trial, complex issues,
or issues that make discovery more difficult and more expensive.” N.J. Reg ‘I Council of
Carpenters i’. D.R. Horton, Inc.. No. 08-1731, 2011 WL 1322204, at *5 (D.N.J. Mar. 31, 2011).
Plaintiffs argue that if the Court of Appeals concludes that a good faith prequalification exists, it
would materially advance the litigation because “the undisputed facts here establish Becton’s
lack of good faith as a matter of law.” D.E. 45-I at 12. Plaintiffs, however, have already made
this argument and it was rejected by the Court in its April 5 order. There, the Court concluded
that “good faith is a fact sensitive question” and “assuming that there is a good faith
prequalification, whether Defendant failed to act in good faith” was a disputed issue of material
fact. D.E. 43 at 3. Consequently, even if the Third Circuit agrees with Plaintiffs and concludes
that there is good faith requirement, the parties will still be required to conduct discovery as to
Defendant’s lack of good faith. As a result, an interlocutory appeal will not materially advance
the litigation. See, e.g. Arias v. DvnCorp, 856 F. Supp. 2d 46, 54 (D.D.C. 2012) (“Any appeal
will almost certainly prolong both the discovery period and the resolution of the litigation.”).
Consequently, it would not be proper for the Court to certify an order for interlocutory
appeal for either question proposed by Plaintiffs.
CONCLUSION
For the foregoing reasons and for good cause, Plaintiffs’ motion is denied in its entirety.
An appropriate font of order accompanies this opinion.
Dated: July 12, 2016
John Michael Vazu, IfD.J.
9
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