Weitzner et al v. Sanofi Pasteur, Inc. et al

Filing 75

MEMORANDUM (Order to follow as separate docket entry) re 69 MOTION to Certify for Immediate Interlocutory Appeal to the United States Court of Appeals for the Third Circuit Pursuant to 28 U.S.C. Sect. 1292(b) this Honorable Court's March 12, 2014 Order denying Defendants' Motion to Dismiss for Lac filed by Vaxserve, Inc., Sanofi Pasteur, Inc. Signed by Honorable A. Richard Caputo on 5/15/14. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ARI WEITZNER and ARI WEITZNER,
M.D., P.C., Individually and on Behalf of
All Others Similarly Situated,

CIVIL ACTION NO. 3:11-cv-2198

(JUDGE CAPUTO)

Plaintiffs,
v.
SANOFI PASTEUR, INC. formerly known
as AVENTIS PASTEUR INC., and
VAXSERVE, INC., formerly known as
VACCESS AMERICA INC.
Defendants.

MEMORANDUM
Presently before the Court is “Defendants’ Motion to Certify for Immediate
Interlocutory Appeal to the United States Court of Appeals for the Third Circuit Pursuant to
28 U.S.C. § 1292(b) this Honorable Court’s March 12, 2014 Order Denying Defendants’
Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Federal Rule of Civil
Procedure 12(b)(1), and Motion For Stay of Proceedings” (Doc. 69). Because the Court’s
March 12, 2014 Order involves a controlling question of law as to which there is a
substantial ground for difference of opinion and an immediate appeal may materially
advance the ultimate termination of the litigation, the Court will grant Defendants’ motion.
BACKGROUND
Plaintiffs Ari Weitzner, M.D. and Ari Weitzner, M.D., P.C., individually and on behalf
of all others similarly situated, commenced this action on November 26, 2011 by filing a
putative class action Complaint (Doc. 1), alleging violations of the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, et seq. On November 23, 2013 Defendants filed

Answers and Affirmative Defenses to Plaintiffs’ Complaint (Docs. 57 and 58). Defendants
served Offers of Judgment pursuant to Federal Rule of Civil Procedure 68 upon Plaintiffs
on November 15, 2013. Plaintiffs did not respond to the Offers of Judgment. On December
4, 2013 Defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure 12(b)(1) (Doc. 59), which this Court denied in
its March 12, 2014 Memorandum and Order (Docs. 67 and 68). See also Weitzner v.
Sanofi Pasteur, Inc., – F.Supp.2d –, No. 11-cv-2198, 2014 WL 956997 (M.D. Pa. Mar. 12,
2014). Defendants now request that this Court certify its March 12, 2014 Order for
immediate interlocutory appeal of the following question:
Whether an unaccepted offer of judgment under Rule 68 in a putative class
action, when the offer is made before the plaintiff files a motion for class
certification pursuant to Rule 23, moots the plaintiff’s entire action including
the putative class claims, and thereby deprives the court of federal subject
matter jurisdiction.
(Doc. 69, ¶ 11).
DISCUSSION
A.

Legal Standard
Defendants seek to certification for interlocutory appeal of the Court's Order of March

12, 2014 under 28 U.S.C. § 1292(b). 28 U.S.C. § 1292(b) provides:
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.
Thus, the elements for an interlocutory appeal are (1) the order “involves a controlling
question of law;” (2) as to which there is “a substantial ground for difference of opinion;”
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and, (3) an immediate appeal “may materially advance the ultimate termination of the
litigation.” Id. The decision to certify for interlocutory appeal rests with the district court, and
the burden to demonstrate that certification is appropriate lies with the moving party. Orson
v. Miramax Film Corp., 867 F. Supp. 319, 320 (E.D. Pa.1994) (citing Delaware Valley Toxics
Coalition v. Kurz–Hastings, Inc., 813 F. Supp. 1132, 1142 (E.D. Pa.1993)). Moreover,
Section 1292(b) certification is appropriate only in exceptional circumstances. U.S. v.
Nixon, 418 U.S. 683, 690, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).
B.

Analysis
A question of law is controlling if: “1) an incorrect disposition would constitute

reversible error and 2) it is serious to the conduct of the litigation, either practically or
legal[ly].”

Eisenberger v. Chesapeake Appalachia, LLC, No. 09-cv-1415, 2010 WL

1816646, at *3 (M.D. Pa. May 5, 2010) (citing Katz v. Carte Blanche Corp., 496 F.2d 747,
755 (3d Cir.1974)). In the present case, incorrect disposition of the question of whether an
unaccepted Rule 68 offer of judgment in a putative class action made prior to the filing of
a Rule 23 motion for class certification moots the plaintiff’s entire action, including the
putative class claims, thereby depriving the court of federal subject matter jurisdiction,
constitutes reversible error. See Beazer East, Inc. V. The Mead Corp., No. 91-408, 2006
WL 2927627, at *2 (W.D Pa. Oct. 12, 2006) (“The court believes that the fundamental issue
of subject matter jurisdiction is one of the clearest examples of a “controlling question of
law” within the meaning of § 1292(b).”) In addition, practically speaking, the conduct of
litigation would be significantly different if the Court lacked subject matter jurisdiction over
this case. Therefore, Defendants have demonstrated that the Order at issue involves a
controlling question of law.
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With respect to the second element, “[a] substantial ground for difference of opinion
exists when there is genuine doubt or conflicting precedent as to the correct legal standard.”
Sakalas v. Wilkes-Barre Hosp. Co., No. 11-CV-0546, 2012 WL 4849721, at *1 (M.D. Pa.
Oct. 11, 2012) (citing P. Schoenfeld Asset Mgmt. LLC. v. Cendant Corp., 161 F. Supp. 2d
355, 360 (D.N.J. 2001)). “The clearest evidence of ‘substantial grounds for difference of
opinion’ is where ‘there are conflicting interpretations from numerous courts.’” Knopick v.
Downey, 963 F. Supp. 2d 378, 398 (M.D. Pa. 2013) (citing Beazer E., Inc. v. The Mead
Corp., No. 91–0408, 2006 WL 2927627, *2 (W.D. Pa. Oct. 12, 2006)).

Here, this

requirement is met, as the Court previously noted that “[t]he Circuits are split on the
question of ‘whether an unaccepted offer of judgment under [R]ule 68 in a purported class
action moots a Plaintiff's claim if the offer is made before the Plaintiff files a motion to certify
the class.’” Weitzner, No. 11-cv-2198, 2014 WL 956997, at *3 (citing Yaakov v. ACT, Inc.,
–– F.Supp.2d ––, No. 12–40088, 2013 WL 6596720, at * 2 (D. Mass. Dec.16, 2013),
amended by No. 12–40088, 2014 WL 257430 (D. Mass. Jan.22, 2014) ). Moreover, while
the Court noted that the Third Circuit Court of Appeals addressed the issue at hand in
Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), the Supreme Court’s decision in
Genesis Healthcare Corp. v. Symczyk, –– U.S. ––, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013)
rejected the applicability of three of the cases relied on by the Third Circuit Court of Appeals
in Weiss to the question of whether an FLSA collective action is justiciable when the lone
plaintiff’s individual claim becomes moot. Weitzner, No. 11-cv-2198, 2014 WL 956997, at
*7. Therefore, while this Court held that it remained bound by Weiss, Defendants have
demonstrated that substantial grounds for a difference of opinion exist.

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Third, to determine whether an immediate appeal would materially advance the
ultimate termination of litigation, courts consider “(1) whether the need for trial would be
eliminated; (2) whether the trial would be simplified by the elimination of complex issues;
and (3) whether discovery could be conducted more expeditiously and at less expense to
the parties.” Knopick, 963 F. Supp. 2d at 398 (citing Patrick v. Dell Fin. Servs., 366 B.R.
378, 387 (M.D. Pa. 2007)). Here, Defendants clearly demonstrate that immediate appeal
would advance the ultimate termination of litigation because reversal of the Court’s March
12, 2014 Order would terminate the litigation.
CONCLUSION
Based on the foregoing, certification for interlocutory appeal is appropriate in this
case. To avoid wasteful and unnecessary discovery, a stay will be granted.
An appropriate order follows.

May 5, 2014
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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