Duke Energy Progress, LLC v. 3M Company, et al

Filing 1283

ORDER denying #1241 Motion for Certificate of Appealability - Signed by District Judge Louise Wood Flanagan on 08/12/2013. (Baker, C.)

Duke Energy Progress, Inc. v. 3M Company, et al

Doc. 1283

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

DUKE ENERGY PROGRESS, INC.,
Plaintiff,
v.
ALCAN ALUMINUM CORPORATION, et al.,
Defendants.

CONSOLIDATION COAL COMPANY,
Plaintiff,
v.
ALCAN ALUMINUM CORPORATION, et al.,
Defendants.

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No. 5:08-CV-460-FL

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No. 5:08-CV-463-FL

ORDER
This matter comes before the court upon third-party defendant Truland Corporation’s
(“Truland”) motion for certification of interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (DE
1241).1 Defendant Truland seeks to appeal the court’s orders denying its motion to dismiss for lack
of personal jurisdiction. Third-party plaintiff PCS Phosphate Company, Inc. (“PCS Phosphate”)
responded in opposition, and defendant Truland replied. The matter is now ripe for review. For the

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For the convenience of the court docket entry numbers refer to the document’s location under case number
5:08-cv-460. Defendant Broad River’s motion is also lodged under the parallel case number 5:08-cv-463, at docket entry
1216.

Dockets.Justia.com

following reasons, defendant Truland’s motion is denied.
Section 1292(b) states, in part, as follows:
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.
28 U.S.C. § 1292(b). Thus, the first requirement for certification of interlocutory appeal is that an
order granting certification “involves a controlling question of law.” Id.
Defendant Truland cannot satisfy this first requirement because it seeks a factual
determination as to the nature of its transaction(s) with Ward. Mem. in Supp. 3, Ex. 1. As discussed
in the court’s previous order, PCS Phosphate only has to make a prima facie showing of personal
jurisdiction in its complaint, because the court has not conducted an evidentiary hearing at this stage.
Carolina Power & Light Co., v. Alcan Aluminum Corp., Nos. 5:08–CV–460–FL, 5:08–CV–463–FL,
2013 WL 1246833, at *9 (E.D.N.C. Mar. 27, 2013). Truland seeks to have the court interpret
documents outside of the pleadings and find that PCS Phosphate’s complaint is inaccurate. Mem.
in Supp. 3, 7. This type of factual dispute is not subject to interlocutory appeal because defendant
Truland’s motion does not rely on a “controlling question of law.” 28 U.S.C. § 1292(b). Instead
of seeking to have the Fourth Circuit resolve the factual dispute as to whether one or more
transformers were sent by defendant Truland to Ward for repair, defendant Truland shall wait for
the stay of discovery to be lifted to raise these factual issues and put PCS Phosphate to its ultimate
burden of showing jurisdiction by a preponderance of the evidence. See Carolina Power & Light
Co., 2013 WL 1246833, at *9, n.21.
Defendant Truland cannot show, and this court cannot order, that interlocutory appeal would

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involve a “controlling question of law” as required by 28 U.S.C. § 1292(b).2 Therefore, defendant
Truland’s motion for certification of interlocutory appeal is DENIED (DE 1241).
SO ORDERED, this the 12th day of August, 2013.

LOUISE W. FLANAGAN
United States District Judge

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The court need not reach the arguments of the parties as to whether the other requirements of this statute are

satisfied.

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