ALUMINUM BAHRAIN B.S.C. v. ALCOA, INC. et al
Filing
134
ORDER granting 111 Motion for Certificate of Appealability pursuant to 28 USC 1292(b). Signed by Judge Donetta W. Ambrose on 10/25/12. (hmg)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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ALUMINIUM BAHRAIN B.S.C.,
Plaintiff,
v.
VICTOR DAHDALEH
Defendant.
Civ. No. 8-299
AMBROSE, Senior U.S. District Judge
OPINION
AND
ORDER OF COURT
Pending before the Court is Defendant Victor Dahdaleh's ("Dahdaleh") Motion for
Certification of Interlocutory Appeal pursuant to 28 U.S.C. § 1292(b). Def.'s Mot, ECF No.
[111]. Dahdaleh moves to certify this Court's Opinion and Order, dated June 11, 2012, denying
Dahdaleh's Motion to Dismiss (ECF No. [73]) on the basis of lack of personal jurisdiction. See
ECF No. [99]. In my Opinion and Order, I found that Pennsylvania's long-arm statute permits
courts to exercise personal jurisdiction over non-residents, such as Dahdaleh, based upon the
"absent co-conspirator" doctrine. See id. at 3-7. Dahdaleh filed a memorandum of law and a
reply in support of his request for certification. Def.'s Mem., ECF No. [112] and Def.'s Reply
Mem., ECF No. [127]. Plaintiff Aluminium Bahrain B.S.C. ("Alba") filed a memorandum of
law in opposition. I PIo's Opp'n Mem., ECF No. [119]. Having carefully considered the parties'
1 At the time Mr. Dahdaleh filed his motion, Alcoa Inc. and Alcoa World Alumina LLC (collectively "Alcoa") and
William Rice also were defendants in this case. Alcoa filed a notice of no position and Mr. Rice filed notice of non
opposition to Mr. Dahdaleh's motion. ECF Nos. [117] & [122]. However, the Court approved a stipulation of
dismissal with prejudice filed by and between Alba, Alcoa, and Mr. Rice on October 11,2012 and, consequently,
the notices filed by Alcoa and Mr. Rice did not factor into my decision. See Order, ECF No. [129] (granting
Stipulation of Dismissal with prejudice),
well-argued positions, and for the reasons explained below, I GRANT Dahdaleh's Motion for
Certification of Interlocutory Appeal.
I.
Standard for Granting Interlocutory Appeal
Section 1292(b) of the United States Code 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, "a non-final order may only be certified for interlocutory appeal if the court determines
that it: (i) involves a controlling question of law; (ii) for which there is substantial ground for
difference of opinion; and (iii) which may materially advance the ultimate termination of the
litigation if appealed immediately." Hall v. Wyeth, Inc., No. 10-738, 2010 WL 4925258, at* 1
(E.D. Pa. Dec. 2, 2010) (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.), cert.
denied, 419 U.S. 885 (1974». Each of these elements must be satisfied for certification to issue.
Id. (citing Mitchell v. Axcan Scandipharm, Inc., 2006 WL 986971 (W.D. Pa. Mar. 13, 2006».
Moreover, even if all the elements are satisfied, the decision to certify rests within the discretion
of the trial court. Id. (quoting L.R. v. Manheim Twp. Sch. Dist., 540 F. Supp. 2d 603,608 (E.D.
Pa.2008».
II.
Application
First, I must consider whether the order Dahdaleh seeks to certify involves a "controlling
question of law." "[T]he Third Circuit Court of Appeals has held that [a] 'controlling question
oflaw' is one which either: (1) if decided erroneously, would lead to reversal on appeal; or (2) is
'serious to the conduct of the litigation either practically or legally.'" Knipe v. SmithKline
Beecham, 583 F. Supp. 2d 553, 598-99 (quoting Katz, 496 F.2d at 755). Because my sole basis
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for exercising personal jurisdiction over Oahdaleh is Pennsylvania's acceptance of the "absent
co-conspirator" doctrine-allowing courts to assert personal jurisdiction over non-resident
defendants who were aware or should have been aware of substantial acts in furtherance of a
conspiracy that occurred in Pennsylvania-an appellate decision rejecting the "absent co
conspirator" doctrine would require reversal and dismissal of Oahdaleh's case. Accordingly, I
find that the first factor weighs in favor of certifying the Order for appeal.
Second, I must consider whether there is "substantial ground for difference of opinion"
regarding use of the co-conspirator doctrine to assert personal jurisdiction over a non-resident
under Pennsylvania law. 2 There is '''substantial ground for difference of opinion' about an issue
when the matter involves 'one or more difficult and pivotal questions of law not settled by
controlling authority.'" Knipe, 583 F. Supp. 2d at 599 (quoting McGillicuddy v. Clements, 746
F.2d 76, n.l (1st Cir. 1984)). "In other words, '[s]ubstantial grounds for difference of opinion
exist where there is genuine doubt or conflicting precedent as to the correct legal standard.'" Id
(quoting Bradburn Parent Teacher Store, Inc. v. 3M, No. 02-7676, 2005 WL 1819969, at *4
(E.O. Pa. Aug. 2, 2005)). This can be established by showing "an absence of controlling law on
the issue" or "conflicting and contradictory opinions." Glover v. Udren, No. 08-990, 2011 WL
3290238 (W.O. Pa. June 30, 2011), adopted by, Glover v. Udren, 2011 WL 3298527 (W.O. Pa.
Aug. 1,2011) (Ambrose, J.).
While the co-conspirator theory of personal jurisdiction is generally accepted by federal
district courts applying Pennsylvania law, I find that there is substantial ground for difference of
opinion because it has not been recognized by the Pennsylvania Supreme Court, federal courts
The parties agree that this District Court, exercising diversity jurisdiction, should apply the substantive law of
Pennsylvania. Pl.'s Mem., ECF No. [119J, 3-4; Def.'s Mem., ECF No. [112J, 3-5; see Erie R.R. Co. v. Tompkins,
304 U.S. 64, 78-80 (1938).
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applying Pennsylvania law have not predicted how the Supreme Court of Pennsylvania would
rule on the issue, and various circuit courts and district courts disagree on its application.
The Pennsylvania Superior Court recognized the co-conspirator theory of personal
jurisdiction in Temtex Products, Inc. v. Kramer, 479 A.2d 500, 506 (Pa. Super. Ct. 1984) (stating
that where a cause of action arises from a conspiracy, "personal jurisdiction over all of the
participants in a concerted action may be maintained where a significant part of the action took
place in the forum state"). There is no Pennsylvania Supreme Court case addressing this issue.
Therefore, a federal district court considering the co-conspirator theory of personal jurisdiction
and applying Pennsylvania law should predict how the Pennsylvania Supreme Court would rule.
See Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 45-46 (3d Cir. 2009). "In so doing, a federal
court can also give due regard, but not conclusive effect, to the decisional law of lower state
courts." Nationwide Mut. Ins. Co., v. Buffetta, 230 F.3d 634,637 (3d Cir. 2000) (citing Burke v.
Maassen, 904 F .2d 178, 182 (3d Cir. 1990)). "The opinions of intermediate appellate state
courts are 'not to be disregarded by a federal court unless it is convinced by other persuasive data
that the highest court of the state would decide otherwise.'" Id. (citing West v. AT&T Co., 311
U.S. 223 (1940)).
However, as Mr. Dahdaleh points out, district courts applying the co
conspirator doctrine under Pennsylvania law have not considered how the Pennsylvania Supreme
Court would rule and rely conclusively on the Pennsylvania Superior Court's decision in Temtex.
See, e.g., Goodson v. Maggi, 797 F. Supp. 2d 604, 621 (W.D. Pa. 2011) (recognizing the co
conspirator theory of personal jurisdiction under Pennsylvania law and relying on federal case
law that similarly does not analyze how the Supreme Court of Pennsylvania would rule on the
issue); CDI Int'/, Inc. v. Marek, No. 04-4837,2005 WL 146890, at *3 (Jan. 21, 2005) (looking to
federal case law and Temtex for co-conspirator doctrine in Pennsylvania); Koresko v. Ble iwe is,
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No. 04-769,2005 WL 2436693, at *3, n.3 (E.D. Pa. Sept. 27, 2005) (looking to federal case law
to apply co-conspirator theory of personal jurisdiction); Santana Prod., Inc. v. Bobrick
Washroom Equip., 14 F. Supp. 2d 710,718 (M.D. Pa. 1998) (discussing and applying the co
conspirator doctrine under Pennsylvania as found in federal case law and in Temtex); Raymark
Indus., Inc. v. Baron, No. 96-7625, 1997 WL 359333, at *3 (E.D. Pa. 1997) (relying on Mass.
Sch. of Law at Andover, Inc. v. Amer. Bar Assoc., 846 F. Supp. 374 (E.D. Pa. 1994) for
application of the co-conspirator doctrine in Pennsylvania); Mass. Sch. ofLaw at Andover, Inc.,
846 F. Supp. at 379-80 (applying Pennsylvania law and co-conspirator theory of jurisdiction
based on federal jurisprudence applying Pennsylvania law); Ethanol Partners Accredited v.
Wiener, Zuckerbrot, Weiss & Brecher, 635 F. Supp. 15, 18 (E.D. Pa. 1985) (recognizing the co
conspirator doctrine and citing to Arpet, Ltd. V. Homans, 390 F. Supp. 908, 911 (W.D. Pa. 1975),
which looks to other circuits to validate application of the co-conspirator doctrine in a federal
securities case); In re Arthur Treacher's Franchisee Litig., 92 F.R.D. 398,411 (E.D. Pa. 1981)
(looking to other jurisdictions in applying a conspiracy theory of personal jurisdiction over a
non-resident). Moreover, the Third Circuit has not addressed whether the conspiracy theory of
jurisdiction comports with due process.
See Roy v. Brahmbhatt, No. 07-5082, 2008 WL
5054096, at *6 (D.N.J. Nov. 26, 2008) (examining conspiracy theory of personal jurisdiction
among various courts).
Additionally, "[a] party may establish that substantial grounds for difference of opinion
exist by demonstrating that different courts have issued conflicting and contradictory opinions
when interpreting a particular question of law." Miron v. Seidman, No. 04-968, 2006 WL
3742772, at *3 (E.D. Pa. Dec. 13,2006) (emphasis in original). District courts within the Third
Circuit, as well as many state courts, disagree about the conspiracy theory basis for personal
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jurisdiction. See Brahmbhatt, 2008 WL 5054096, at *6-8 (discussing pennissibility of the co
conspirator theory in various courts). As Defendant points out, the Third Circuit upheld rejection
of the co-conspirator theory of personal jurisdiction by a district court in New Jersey, a forum
that has a long-ann statute similar to Pennsylvania's (authorizing personal jurisdiction to the full
extent provided by the Due Process Clause). LaSala v. Marfin Popular Bank Pub. Co., 410 Fed.
Appx. 474,478 (3d Cir. 2011), aff'g, 2010 WL 715482 (D.N.J. Mar. 1,2010); see also Synergy,
Inc. v. Manama Textile Mills, No. 06-4129, 2008 WL 6839038 at *13, n.6 (D.N.J. Feb. 19,2008)
("Pennsylvania law is 'identical' to New Jersey's long-ann statute). In so doing, the Third
Circuit predicted that New Jersey's Supreme Court would decline to adopt the conspiracy theory
of personal jurisdiction. LaSala, 410 Fed. Appx. at 478.
Accordingly, I find a substantial
ground for difference of opinion exists and the second statutory factor for an interlocutory appeal
has been met.
Lastly, when evaluating whether an interlocutory appeal would materially advance the
ultimate tennination of the litigation, the Court must consider several factors: "(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." Hall, 2010 WL 4925258, at *2. Here, it is clear that an interlocutory
appeal could materially advance the ultimate tennination of the litigation.
Because Mr.
Dahdaleh is the sole defendant remaining, a successful appeal could potentially tenninate the
case. See Order, ECF No. [129] (granting Stipulation of Dismissal as to Alcoa and Mr. Rice).
This Court is aware that certification for interlocutory appeal could further delay, rather than
expedite, the ultimate disposition of this case. However, discovery in this matter promises to be
lengthy and complex. Def.'s Mem., ECF No. [112], 3; see also Minute Entry, ECF No. [105].
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Given the need by both parties to request discovery from foreign individuals, a successful appeal
could diminish the discovery expense in this case. [d. Therefore, I find that the third criterion
favors certification of an interlocutory appeal.
III.
Conclusion
Based on the foregoing, Plaintiff's motion to certify the Opinion and Order for
interlocutory appeal is GRANTED.
The proceedings are not stayed pending Defendant's
application for appeal. The parties should proceed with discovery in accordance with my ruling
on Defendant's motion to stay discovery.
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,
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALUMINIUM BAHRAIN B.S.C.,
Plaintiff,
v.
VICTOR DAHDALEH
Defendant.
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Civ. No. 8-299
AMBROSE, Senior U.S. District Judge
ORDER
AND NOW, this ~~ day of October, 2012, having carefully considered Defendant
Victor Dahdaleh's Motion for Certification of Interlocutory Appeal pursuant to 28 U.S.C.
1292(b), the motion is GRANTED. The Court's Opinion and Order, dated June 11, 2012, is
certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) because the Court is of the
opinion that the issue of whether Pennsylvania's long-arm statue permits courts to exercise
personal jurisdiction over non-residents based on the "absent co-conspirator" doctrine is a
controlling question of law as to which there is substantial ground for difference of opinion and
an immediate appeal from the Order may materially advance the ultimate termination of the
litigation.
BY THE COURT:
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Donetta W. Ambrose
Senior Judge, U.S. District Court
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