Lineberger et al v. CBS Corporation et al
ORDER denying 139 Siemens Corporations' Motion to Certify Interlocutory Appeal. Signed by District Judge Martin Reidinger on 10/5/2017. (khm)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:16-cv-00390-MR-DLH
TOMMY WILLIAM LINEBERGER and )
MARCELLA WILSON LINEBERGER, )
CBS CORPORATION, et al.,
THIS MATTER is before the Court on the Defendant Siemens
Corporation’s Motion to Certify Interlocutory Appeal [Doc. 139].
The Plaintiffs Tommy William Lineberger and Marcella Wilson
Lineberger, husband and wife, brought this diversity action against
Defendants CBS Corporation, et al., as a result of Mr. Lineberger’s alleged
contraction of mesothelioma from exposure to asbestos and products that
contain asbestos. [Doc. 1].
On January 30, 2017, Siemens moved to dismiss, or, in the alternative,
for a more definite statement pursuant to Rule 12(b)(6) and 12(e) of the
Federal Rules of Civil Procedure. [Doc. 74]. On August 14, 2017, the
recommending that Siemens’ motion be denied. [Doc. 126]. Siemens timely
objected to the Magistrate Judge’s recommendation, arguing that the
Magistrate Judge misapplied Rule 8 of the Federal Rules of Civil Procedure.
[Doc. 132]. On September 5, 2017, this Court overruled Siemens’ objections
and adopted the Memorandum and Recommendation. [Doc. 134].
On September 19, 2017, Siemens filed the present motion, requesting
that the Court amend its September 5, 2017 Order to include certification for
immediate interlocutory appeal. [Doc. 139]. Specifically, Siemens poses the
following question for certification:
[W]hether an asbestos complaint that makes only
undifferentiated allegations against all defendants as
a collective group satisfies the pleading requirements
of Rules 8 and 12(b)(6), as elucidated in Bell Atlantic
Corp v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009)[?]
[Id.]. To date, Plaintiff has not filed a response to Seimens’ motion.1 The
matter is now ripe for disposition.
Pursuant to 28 U.S.C. § 1292(b), a district court may certify an
interlocutory order for immediate appeal where (1) the “order involves a
Plaintiff’s response was due by October 3, 2017.
controlling question of law,” (2) “as to which there is substantial ground for
difference of opinion” and (3) “an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” 28 U.S.C. §
1292(b). Section 1292(b) “was not intended to allow interlocutory appeal in
ordinary suits,” or “as a vehicle to provide early review of difficult rulings in
hard cases.” State ex rel. Howes v. Peele, 889 F.Supp. 849, 852
(E.D.N.C.1995) (quoting in part Abortion Rights Mobilization, Inc. v. Regan,
552 F.Supp. 364, 366 (S.D.N.Y.1982)). Rather, section 1292(b) “is limited to
extraordinary cases where early appellate review might avoid protracted and
expensive litigation.” Id. Further, even when “the requirements of section
1292(b) are satisfied, the district court has ‘unfettered discretion’ to decline
to certify an interlocutory appeal if exceptional circumstances are absent.”
Healthcare Res., 966 F.Supp.2d 561,
(E.D.N.C.2013). Here, the requirements of section 1292(b) have not been
satisfied and, even if they were satisfied, no exceptional circumstances exist
in this case.
First, Siemens has not posed a controlling question of law. “In order for
a question to be ‘controlling,’ the district court must actually have decided
such question.” Commonwealth of Virginia ex rel. Integra Rec LLC v.
Countrywide Sec. Corp., No. 3:14CV706, 2015 WL 3540473, at *4 (E.D. Va.
June 3, 2015) (citations omitted). The Court, contrary to Siemens’
arguments, did not decide whether “only undifferentiated allegations against
Defendants” is sufficient to survive a motion to dismiss. Rather, the adopted
Memorandum and Recommendation analyzed whether the specific
allegations in the Plaintiffs’ Complaint, considered under the applicable law,
were sufficient to survive Siemens’ motion to dismiss. [Doc. 126 at 5, 6].
Particularly, in this case the Plaintiffs described in the Complaint “the type of
work Plaintiff T. Lineberger performed and allege[d] how he was exposed to
asbestos during each of these periods of employment. In addition, Plaintiff
allege[d] the exact locations of the facilities where he worked as a freight
delivery driver. Plaintiffs also allege[d] a list of asbestos containing products
to which Plaintiff T. Lineberger was exposed during his employment. Finally,
Plaintiffs allege[d] that Defendant was involved in the manufacture,
production, or distribution of the asbestos containing products that Plaintiff
T. Lineberger was exposed to while working at the jobs alleged in the
Complaint.” [Id. At 5]. This is not a group of “undifferentiated allegations
against the Defendants” as Defendant asserts. As such, Siemens’ posed
question was not actually decided and is not a controlling question of law.
Second, Siemens has not shown there is substantial ground for
difference of opinion. “An issue presents a substantial ground for difference
of opinion if courts, as opposed to parties, disagree on a controlling legal
issue.” Randolph v. ADT Sec. Servs., Inc., No. DKC 09–1790, 2012 WL
273722, at *6 (D.Md. Jan. 30, 2012). Siemens cites and reargues the
application of cases this Court has already previously considered and found
unpersuasive, particularly as they pertain to the Complaint filed in this case.
The Court’s decision involved a straightforward application of well-known
legal standards. Further, the adopted Memorandum and Recommendation
also differentiated between unpersuasive and applicable case law by
specifically citing to the decision by the United States District Court for the
Eastern District of North Carolina in Miller v. 3M Company, No. 5:12-Cv00620-BR, 2013 WL 1338694, at * 2 (E.D.N.C. Apr. 1, 2013). [Doc. 126 at
Third, Siemens has not shown an immediate appeal would materially
advance the ultimate termination of this litigation. Contrary to Siemens’
arguments, an immediate appeal would only complicate this litigation. The
numerous Defendants remaining in this case have filed Answers, discovery
is proceeding, and a mediator has already been selected.
Finally, even if the requirements of section 1292(b) had been satisfied,
there are no exceptional circumstances in this case. Defendant Siemens has
not shown that there are any “exceptional circumstances [to] justify a
departure from the basic policy of postponing appellate review until after the
entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475
(1978) (internal quotations omitted). Moreover, an immediate appeal could
easily create more litigation and expense, as well as cause inefficient use of
the Fourth Circuit’s resources. Therefore, even if the requirements of section
1292(b) had been satisfied, no exceptional circumstances exist that warrant
justification of an immediate interlocutory appeal.
For all of these reasons, the Defendant’s motion to certify interlocutory
appeal is denied.
IT IS, THEREFORE, ORDERED that the Siemens Corporations’
Motion to Certify Interlocutory Appeal [Doc. 139] is DENIED.
IT IS SO ORDERED.
Signed: October 5, 2017
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