Favor v. W.L. Gore Associates, Inc. et al

Filing 51

ORDER denying 50 Plaintiff's Motion to Certify for Immediate Appeal to the Sixth Circuit Court of Appeals. Signed by Judge Gregory L Frost on 9/19/13. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL J. FAVOR [sic],
Case No. 2:13-cv-655
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

Plaintiff,

v.
W.L. GORE ASSOCIATES, INC., et al.,
Defendants.
ORDER
This matter is before the Court on Plaintiff Michael J. Favors’ motion to certify for
immediate appeal to the Sixth Circuit Court of Appeals this Court’s September 11, 2013 order
denying remand or, alternatively, to certify state law questions to the Supreme Court of Ohio.
(ECF No. 50.) The Court DENIES Plaintiff’s motion.
Plaintiff first asks this Court to certify its September 11, 2013 decision (ECF No. 47) as
one “that involves a controlling question of law as to which there is substantial ground for
difference of opinion” and to certify that “an immediate appeal from that order may materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The Court declines to
do so. The two questions over which Plaintiff seeks immediate appeal are as follows:
1.
Whether defective surgical mesh intentionally implanted into the
body of a patient is a “foreign object” within the meaning of Ohio R. Code
§2305.115(D)(2); and
2.
Whether Ohio recognizes a cause of action, that is not a medical
claim, for negligent maintenance of medical records.
(ECF No. 50 at PageID# 512.)

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In its Opinion and Order of September 11, 2013, the Court resolved both of these
questions against Plaintiff, resulting in a finding of fraudulent joinder of non-diverse defendants.
(ECF No. 47 at PageID# 503-07.) The Court therefore denied Plaintiff’s motion to remand this
case to the state court from which Defendants removed it. (Id. at PageID# 507.) The Court
views neither of the purely state law questions cited by Plaintiff as one from which an immediate
appeal would “materially advance the ultimate termination of the litigation.” Resolution of these
issues would determine the forum of the litigation (i.e., federal court or state court) but would not
necessarily advance the termination of the entire action. Accordingly, the Court declines
Plaintiff’s invitation to certify this decision for an immediate appeal that would do nothing more
than delay proceedings in an action over which this Court has determined it has jurisdiction.
As to Plaintiff’s requested alternative relief of certifying state law questions to the
Supreme Court of Ohio, the Court finds certification inappropriate. Under Supreme Court Rule
of Practice 9.01, a federal court may issue a certification order upon “finding there is a question
of Ohio law that may be determinative of the proceeding and for which there is no controlling
precedent in the decisions of this Supreme Court.” The decision to certify a state-law question to
the Ohio Supreme Court falls within the discretion of the federal court. Gascho v. Global
Fitness Holdings, LLC, 918 F. Supp. 2d 708, 713 (S.D. Ohio 2013).
This Court declines to certify Plaintiff’s questions to the Supreme Court of Ohio. Even if
the Court accepts the premise that there is no controlling Ohio Supreme Court precedent with
regard to the issues he seeks to certify, the Court finds that certification would not save time,
energy, or resources. The issues Plaintiff identifies would be determinative of only part of this
action. Thus, certification would cause undue delay for resolution of issues that would not even
be dispositive of the entire action.

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The Court DENIES Plaintiff’s motion (ECF No. 8.) In light of the Court’s prompt
resolution of this motion, Plaintiff’s concomitant request for a stay of briefing on pending
motions is also DENIED.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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