HARRIS et al v. KELLOGG BROWN & ROOT SERVICES, INC.

Filing 389

MEMORANDUM OPINION indicating that, fore reasons more fully stated in said Opinion, Defendant's Motion for Certification and Amendment of Order Pursuant to 28 U.S.C. § 1292(b) 352 is denied; An appropriate Order follows. Signed by Judge Nora Barry Fischer on 4/27/16. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHERYL A. HARRIS, Co-Administratrix
of the Estate of RYAN D. MASETH,
deceased, and DOUGLAS MASETH,
Co-Administrator of the Estate of RYAN
D. MASETH, deceased,
Plaintiffs,
v.
KELLOGG, BROWN & ROOT
SERVICES, INC.,
Defendant.

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Civil Action No. 08-563
Judge Nora Barry Fischer

MEMORANDUM OPINION
I.

INTRODUCTION
This is a wrongful death and survival action brought by Plaintiffs Cheryl Harris and

Douglas Maseth (“Plaintiffs”) against government contractor Kellogg, Brown & Root Services,
Inc. (“KBR”), arising from the death of Plaintiffs’ son, Staff Sergeant Ryan Maseth, (“SSG
Maseth”), who was killed in 2008 while showering at a military base in Iraq where KBR had
operations and maintenance responsibilities under government contracts. (Docket No. 209). The
matter was remanded by the Court of Appeals with specific instructions for this Court to resolve
a contested choice of law issue before proceeding to adjudicate dispositive motions, including
the applicability of KBR’s political question defense. See Harris v. Kellogg Brown & Root
Services, Inc., 724 F.3d 458, 482 (3d Cir. 2013). After extensive briefing and argument, this
Court entered a Memorandum Opinion and Order on December 16, 2015 denying KBR’s motion
requesting that the Court apply Texas law to the liability and apportionment issues in this case
and holding that Pennsylvania law controlled those issues. See Harris v. Kellogg, Brown & Root

Services, Inc., ---- F. Supp. 3d. ------, 2015 WL 8990812 (W.D. Pa. Dec. 16, 2015); (see also
Docket Nos. 342, 343).
This case returns to the Court once again by way of KBR’s motion seeking leave to file
an interlocutory appeal to the United States Court of Appeals for the Third Circuit challenging
the Court’s choice of law decision. (Docket Nos. 352, 353, 370). Plaintiffs oppose KBR’s
motion. (Docket Nos. 361, 378). The matter has been fully briefed and oral argument was held
on February 24, 2016, the official transcript of which was filed on April 6, 2016. (Docket Nos.
379, 383). The parties declined the Court’s invitation to submit post-hearing supplemental
briefing. (Docket No. 379). After careful consideration of all of the parties’ arguments, and for
the following reasons, KBR’s Motion [352] is DENIED.
II.

LEGAL STANDARD
As the parties are well familiar with the facts and procedural history of this case, the

Court turns initially to the prevailing legal standard under 28 U.S.C. § 1292(b). See Harris v.
Kellogg, Brown & Root Services, Inc., 2009 WL 1248060, at *1 (W.D. Pa. Apr. 30, 2009).
Section 1292(b), entitled “Interlocutory decisions,” 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 in 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). Section 1292(b) grants the Court of Appeals jurisdiction to review the
District Court’s interlocutory order. “Certification pursuant to § 1292(b) should be granted
‘sparingly’ and only when three conditions are met: (1) where immediate appeal may avoid
protracted and expensive litigation, (2) the request involves a controlling question of law, and (3)
where there is a substantial basis for differing opinion.” J.L. v. Ambridge Area School District,

Civ. A. No. 06–1652, 2008 WL 906534, at *2 (W.D. Pa. Apr.1, 2008) (citing Milbert v. Bison
Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958); Orson, Inc., v. Miramax Corp., 867
F.Supp. 319, 321 (E.D. Pa. 1994)). The party seeking the interlocutory appeal has the burden to
establish that all three conditions are met. In re Norvergence, Inc., Civ. A. No. 08–1910, 2008
WL 5136706, at *2 (D. N.J. Dec. 5, 2008). However, this Court has discretion to deny an
interlocutory appeal even if that party meets its burden. See Bachowski v. Usery, 545 F.2d 363,
368 (3d Cir. 1976) (“The certification procedure is not mandatory; indeed, permission to appeal
is wholly within the discretion of the courts, even if the criteria are present.”).
III.

DISCUSSION
Naturally, the parties contest the application of this legal test to the Court’s December 16,

2015 Order with KBR arguing that the interlocutory appeal should go forward and Plaintiffs
countering that certification should be denied. (See Docket Nos. 352, 353, 361, 370, 378, 383).
Before reviewing the necessary factors outlined above, the Court must address a threshold issue
concerning the propriety of the scope of KBR’s proposed certification order.
A. Scope of KBR’s Proposed Certification Order
To this end, this Court’s December 16, 2015 Order stated as follows:
AND NOW, this 16th day of December, 2015, in
accordance with the foregoing Memorandum Opinion,
IT IS HEREBY ORDERED that KBR’s Motion for
Application of the Texas Proportional Liability Scheme [319] is
denied.
IT IS FURTHER ORDERED that the Pennsylvania laws of
joint and several liability that were in effect as of January 2, 2008
and do not permit the assessment of fault to non-parties by the jury
will be applied to the apportionment and liability issues in this
case.

(Docket No. 343). KBR’s instant motion for interlocutory appeal does not seek to only amend
the December 16, 2015 Order to include the necessary language identified in § 1292(b), i.e., the
Order involves “a controlling question of law as to which there is substantial ground for
difference in opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). 1 Rather, KBR’s proposed Order
requests that this Court certify the following question of law to the Court of Appeals for
immediate review:
Whether choice-of-law principles dictate that Texas has the
greatest interest in regulating the conduct of its citizens and thus
has the greatest interest in applying its law to the apportionment of
liability issues in this case, such that Plaintiffs’ claims are barred
by the political question doctrine.
(Docket No. 352-1). It is this Court’s opinion that KBR’s pursuit of an interlocutory appeal in
this manner must be denied as procedurally improper for several reasons.
First, the Court of Appeals lacks jurisdiction to adjudicate an interlocutory appeal to
address legal issues that were not definitively decided in the challenged order of the District
Court. See e.g., Okolinsky v. Philadelphia, B. & N. E. R. Co., 282 F.2d 70, 71 (3d Cir. 1960)
(“we were without power to enter our order allowing the interlocutory appeal for we had no
jurisdiction in the absence of an order by the court below.”); Katz v. Carte Blanche Corp., 496
F.2d 747, 764 (3d Cir. 1974) (“We cannot exercise appellate jurisdiction over an issue not yet
decided in the district court.”); Link v. Mercedes–Benz of N. Am., Inc., 550 F.2d 860, 862 (3d
Cir.1977) (“[i]n the absence of a definitive order ... by the district court, the inquiry is essentially
1

The Court notes that KBR’s previous motion filed in this case seeking an interlocutory appeal sought this
type of order. (See Docket No. 161-1 (“AND NOW, this _____ day of ________________, 2009, it is hereby
ORDERED that the Defendant’s Motion For Certification and Amendment of Order Pursuant to 28 U.S.C. §
1292(b) is GRANTED and this Court’s March 31, 2009 Memorandum Opinion and related Order [ … ] is hereby
certified and amended, pursuant to 28 U.S.C. § 1292(b), to state that the Order involves a controlling question of law
as to which there is substantial ground for difference of opinion and that an immediate appeal may materially
advance the ultimate termination of the litigation.”)).

a request for an advisory opinion, which we may not honor.”). “Although section 1292(b)
provides that a [District Court] must certify that its order involves a controlling ‘question of law,’
[the Court of Appeals’] review is of orders and not of isolated legal questions.” Miller v. Bolger,
802 F.2d 660, 666-67 (3d Cir. 1986) (citing Link, 550 F.2d at 863). Further,
[s]ection 1292(b) is not intended to grant the appellate courts
power to give advice on speculative matters. While counsel and the
district court might believe it helpful to have the appellate court’s
view on proposed alternate courses of action, [the appellate
court’s] jurisdiction extends only to orders of the district court.
These orders must be definitive, effective, and in a posture capable
of affirmance or reversal.
Link, 550 F.2d at 863; Cf. Wright, Miller, et al., Federal Practice and Procedure, 16 Fed. Prac.
& Proc. Juris. § 3930 (3d ed.) (“If there is a district-court order and interlocutory appeal is
allowed, the scope of the appeal does not extend to issues not yet decided by the district court.”).
In its proposed order, KBR frames the issue for the Court of Appeals as if this Court
entered a definitive ruling on the applicability of the political question doctrine defense in its
December 16, 2015 Memorandum Opinion and Order. (Docket No. 352-1). Despite KBR’s
advocacy to the contrary, this Court simply did not enter any dispositive ruling denying KBR’s
political question doctrine defense at that time as that issue was not directly before the Court.
Rather, this Court addressed:
[a] conflict of law issue concerning whether the claims and
defenses raised by the parties are governed by one of the
proportional liability systems utilized by Texas or Tennessee
which permit the jury to assign fault to immune non-parties, or
Pennsylvania’s joint and several liability system which permits the
jury to only assign fault between the parties to the case.
Harris, 2015 WL 8990812, at *1. More specifically, this Court denied KBR’s motion seeking
the application of Chapter 33 of the Texas proportional liability scheme to the negligence claim
in this case and held that Pennsylvania law would apply. (See e.g., Docket No. 319 at ¶ 6

(“Wherefore, KBR respectfully requests that the Court apply the Texas liability scheme, which
permits allocation of fault to immune non-parties.”); Docket No. 336 at 10 (“At issue here is the
2003 amendment to Chapter 33 of the Texas proportional liability scheme in which Texas has
permitted defendants like KBR to apportion liability to nonparties who are not subject to joinder
in the suit.”)). The limited nature of the Court’s inquiry and the fact that the sufficiency of the
political question defense was not being decided at that juncture were acknowledged by KBR
throughout its filings and were embodied in the Court’s various orders. (Docket No. 320 at 7
(“KBR recognizes that the Court must comply with the Third Circuit’s direction to resolve
choice of law as a prerequisite to resolving justiciability.”); Docket No. 316 (“consistent with the
Opinion of the Court of Appeals, the threshold choice of law issue must be resolved prior to the
Court and the parties addressing [ … ] other matters [ … ] i.e., additional fact discovery on
liability and/or damages; argument and further briefing of previously filed Daubert motions;
additional dispositive motions and motions in limine; and alternative dispute resolution”)).
From the Court’s perspective, even if the Court had determined that Texas law controlled
the liability and apportionment issues, it would not have definitively resolved the merits of
KBR’s political question defense. (See Docket No. 316). Rather, it was clear that additional
proceedings would have been required before reaching that decision. (Id.). As is the typical
practice, the Court would have ordered that a dispositive motion be filed, set a briefing schedule,
held argument, and issued an opinion resolving the matter.
The Court also disagrees with KBR’s position that the December 16, 2015 Memorandum
Opinion should be read as deciding the merits of the political question defense. (See Docket
Nos. 352, 353, 370). Indeed, the Court noted a number of nuanced legal issues under Texas law
that it declined to reach because the Court held that Pennsylvania law applies under the

traditional choice of law rules. See Harris, 2015 WL 8990812, at *16, n.18 (listing issues that
the Court need not decide including: whether any attempt by KBR to designate the United States
as a responsible third party under Texas law was untimely; and if the Texas statute was
unconstitutional). A few of these disputes have been raised via the parties’ arguments as to
whether an interlocutory appeal would materially advance the termination of the litigation, as is
discussed in further detail below. See § III.B.3, infra. But, it is clear to this Court that it would
be inappropriate to certify the legal questions that KBR has proffered given the lack of any ruling
by this Court on a dispositive motion that was never filed.
In short, an interlocutory appeal presenting the Court of Appeals with both the choice of
law question and the issue of the applicability of the political question defense would be wholly
speculative because there is no definitive order from this Court resolving the political question
defense at this stage of the case.2 See Link, 550 F.2d at 863. Certifying these questions would
essentially request an advisory opinion from the appellate bench on a hypothetical and abstract
legal issue on that defense. See In re Cent. European Distribution Corp. Sec. Litig., No. CIV.A.
11-6247 JBS, 2012 WL 5511711, at *3 (D.N.J. Nov. 14, 2012) (“In other words, the Court
cannot ask the Third Circuit to certify a question on which it did not issue a definitive order. The
Court had no imperative to decide the question of an investment advisor’s standing and, at this
time, it cannot ask the Third Circuit to do so.”). Accordingly, KBR’s motion must be denied on
this basis.
Second, KBR’s motion is untimely insofar as it asks the Court to alter or amend its
December 16, 2015 Order to add language indicating that the Court had also denied KBR’s

2

The Court initially denied KBR’s motion to dismiss raising the political question doctrine, without
prejudice. See Harris v. Kellogg, Brown & Root Services, Inc., 618 F. Supp. 2d 400 (W.D. Pa. Mar. 31, 2009). The
Court later granted KBR’s renewed motion, but that order was vacated by the Court of Appeals. See Harris, 724
F.3d at 482.

political question defense at this stage of the case. Aside from subsequent motions practice, it
appears to the Court that the only other vehicle through which this type of Order could have been
obtained would have been through a motion for reconsideration. But, as KBR admits, it did not
seek reconsideration of the Court’s Order. (Docket No. 383 at 3-4).3 KBR is also well-aware
that this Court has an established procedural rule requiring that motions for reconsideration must
be filed within seven (7) days. (See Docket No. 237 at ¶ 2 (KBR seeking leave of court
requesting an extension of time given that “[a]ny Motion for Reconsideration […] must be filed
within 7 days” under the Practices and Procedures of Judge Fischer)). KBR’s motion for an
interlocutory appeal was not filed until January 21, 2016, well outside the seven day time period
for pursing a motion for reconsideration, which expired as of December 23, 2015. Therefore,
KBR’s motion must also be denied to the extent that it is viewed as seeking reconsideration of
the December 16, 2015 Memorandum Opinion and Order.
In light of these procedural defects, the Court will deny KBR’s Motion. The Court’s
analysis could end here but, for completeness, the Court will continue to evaluate the factors
under § 1292(b), some of which separately provide an independent basis to deny the requested
relief.
B. § 1292(b) Factors
With respect to the § 1292(b) factors, KBR contends that it has met each of the three
necessary factors to demonstrate that an interlocutory appeal is appropriate: (1) the order
involved a controlling question of law; (2) that presented a substantial ground for difference of
3

The Court notes that the following exchange took place during the motion hearing.
MR. MOSIER: ….What I think is important about this standard is that this is not
a motion for reconsideration.
THE COURT: You know, you could have brought one, and you didn’t.
MR. MOSIER: Right. You know, and I think, as we'll talk about -- I think the
Court’s decision, while we disagree with it, we recognize that it involves novel
questions.
(Docket No. 383 at 3-4).

opinion; and (3) that a disposition of the interlocutory appeal at this time would materially
advance the termination of this litigation. (See Docket Nos. 352, 353, 370). Plaintiffs respond
that KBR has failed to satisfy each of these factors and continue that even if KBR had met its
burden, the Court should exercise its discretion to deny the motion. (Docket Nos. 361, 378). At
the hearing, KBR suggested that the Court should consider certifying its proposed order and
retaining jurisdiction over the remainder of the case, presiding over discovery, and deciding
summary judgment and Daubert motions that KBR intends to file after the close of discovery.
(Docket No. 383). Plaintiffs oppose this proposal as well. (Id.). Having considered all of the
relevant factors, the Court agrees with Plaintiffs’ position that KBR has failed to meet its burden
under § 1292(b). The Court now turns to its analysis of the factors under § 1292(b), starting with
whether the order implicates a controlling question of law.
1. Controlling Question of Law
“An order involves a controlling question of law if either (1) an incorrect disposition
would constitute reversible error if presented on final appeal or (2) the question is ‘serious to the
conduct of the litigation either practically or legally.’” In re Chocolate Confectionary Antitrust
Litigation, 607 F. Supp. 2d 701, 705 (M.D. Pa. 2009) (quoting Katz, 496 F.2d at 755).
It does not appear that the parties truly dispute this factor. (See Docket Nos. 352, 353,
361, 370, 378, 383). However, as the Court has already explained above, the Court’s December
16, 2015 Order and the legal issues that KBR seeks to appeal involve very different questions of
law, one of which this Court has not reached at this juncture of the case. See § III.A., supra.
With that said, the Court agrees that its Order denying KBR’s motion seeking the application of
Texas law may constitute reversible error if raised on a final appeal. See Harris, 2009 WL
1248060 at *1-2. Thus, this factor has been satisfied.

2. Substantial Ground for Difference of Opinion
Moving on, “[a] substantial ground for difference of opinion may be demonstrated by
offering conflicting and contradictory opinions of courts which have ruled on the issue,” J.L.,
2008 WL 906534, at *2, or by “the absence of controlling law on a particular issue,” Knipe v.
SmithKline Beecham, 583 F. Supp. 2d 553, 600 (E.D. Pa. 2008). For certification to be
warranted, “[a] genuine doubt must exist about the legal standard governing a particular case.” In
re Chocolate Confectionary Antitrust Litigation, 607 F. Supp. 2d at 706 (citing Knipe, 583 F.
Supp. 2d at 599). This Court “should not certify questions of relatively clear law merely because
the losing party disagrees with the court’s analysis.” Id. (citing Elec. Mobility Corp. v. Bourns
Sensors/Controls, 87 F. Supp. 2d 394, 398 (D. N.J. 2000)).
With respect to this factor, KBR has lodged a number of criticisms of this Court’s choice
of law analysis arguing, among other things, that the Court: purportedly failed to consider all of
the cases that KBR cited during the extensive briefing on the issues; allegedly double-counted
the contacts of SSG Maseth and his parents as part of its analysis; incorrectly found that the
location of KBR’s Government and Infrastructure Division in Virginia diminished Texas’
governmental interests in the activities of this case; and improperly considered the Court of
Appeals’ ruling on the political question doctrine during its choice of law analysis. (Docket Nos.
352, 353, 370). But, KBR did not timely seek reconsideration raising any of these particular
points, making these rulings final. See § III.A., supra. Thus, the Court declines to revisit them
here.
Further, KBR’s arguments challenge the Court’s application of the facts to the wellsettled Pennsylvania choice of law rules, rather than raising any genuine doubt as to whether this
Court applied the appropriate legal standard. See e.g., Douglas v. Discover Property & Casualty

Ins. Co., 2015 WL 8179641, at *5-6 (M.D. Pa. Dec. 7, 2015) (showing that “the Court erred in
applying well-established law” does not suffice to demonstrate substantial grounds for a
difference of opinion). Indeed, KBR cited this Court’s prior recitation of Pennsylvania choice of
law rules as the prevailing standard in its opening brief, undermining its position on this issue.
(See Docket No. 320 at 12-14 (citing Harris v. Kellogg, Brown & Root Services, Inc., 796 F.
Supp. 2d 642, 656-57 (W.D. Pa. 2011)).
More critically, however, is that KBR has not quarreled with the main aspects of Texas
law that led to this Court’s decision, i.e., Texas still permits joint and several liability against one
defendant if that defendant is found more than 50% liable by the jury; and, Texas law only
permits the apportionment of compensatory damages to non-parties. (See Docket Nos. 352, 353,
370).

Without upsetting these legal principles, KBR’s other arguments carry little weight

because mere disagreements with the Court’s application of well-settled Pennsylvania choice of
law principles to the facts and circumstances of this case do not suffice to demonstrate a
substantial ground for a difference of opinion. See Harris, 2009 WL 1248060 at *2 (quoting In
re Chocolate Confectionary Antitrust Litigation, 607 F. Supp. 2d at 706) (“court should not
certify questions of relatively clear law merely because the losing party disagrees with the
court’s analysis.”). While the Court agrees that the choice of law inquiry presented novel legal
questions within the context of its evaluation of standard Pennsylvania choice of law rules, as
applied to the facts of this case, the same is not enough to show a substantial ground for
difference of opinion on the matter. See id. Accordingly, the Court finds that KBR has not met
its burden to prove this second factor under § 1292(b).
3. Materially Advances the Litigation

In determining whether certification would “materially advance the ultimate termination
of the litigation,” 28 U.S.C. § 1292, this Court “must evaluate whether an appeal could eliminate
the need for a trial, simplify a case by foreclosing complex issues, or enable the parties to
complete discovery more quickly or at less expense.” In re Chocolate Confectionary Antitrust
Litigation, 607 F. Supp. 2d at 707 (citing Knipe, 583 F.Supp.2d at 599; Patrick v. Dell Fin.
Servs., 366 B.R. 378, 387 (M.D. Pa. 2007)).
As the Court alluded to above, the crux of the parties’ disputes surround whether this
litigation would terminate if KBR won its proposed interlocutory appeal. (Docket Nos. 352, 353,
361, 370, 378, 383). KBR contends that the litigation would end if the Court of Appeals
disagreed with this Court and found that Texas law should apply to the liability and
apportionment issues in the litigation, thus barring all of Plaintiffs’ claims under the political
question doctrine. (Docket Nos. 352, 353, 370). Plaintiffs counter that the Court of Appeals
suggested that the matter could proceed to trial on any liability/damage theories that did not
involve apportionment of fault to the United States such as for nominal and punitive damages.
(Docket Nos. 361, 378). KBR responded to this line of reasoning at the hearing, with counsel
explaining that the application of a host of other legal principles – none of which this Court has
ever passed on definitively – would ultimately result in dismissal of Plaintiffs’ claims for
nominal and punitive damages if it was determined that Texas law controlled. (See Docket No.
383 at 11-13).
In this Court’s estimation, the parties’ disconnect on these issues arises in large part from
the fact that the Court’s ruling was limited to the choice of law decision which did not adjudicate
the merits of a dispositive motion on the political question defense – again, because no such
motion was before the Court at that time. See § III.A., supra. If the Court certified its December

16, 2015 Order by adding only the necessary language under § 1292(b), a ruling on the
interlocutory appeal in KBR’s favor that Texas law should be applied to the liability and
apportionment issues would not materially advance the termination of this litigation. For the
reasons already expressed by the Court, any ruling by the Court of Appeals would be limited to
affirming or reversing this Court’s choice of law decision, necessitating a remand to this Court
for further proceedings on dispositive motions.

At that time, the Court would issue a briefing

schedule and permit the parties to argue their respective positions as to the scope of the claims
that could proceed to trial, if any, and the type of relief that would be available to Plaintiffs.
All told, this Court simply cannot agree with KBR that Plaintiffs would necessarily be
out of court if Texas law applied, and it would be improvident for this Court to make such a
ruling now. It may be, as Plaintiffs suggest, that they would only be barred from seeking
compensatory damages 4 at trial if the Court of Appeals reversed and held that Texas law
controlled. (Docket Nos. 361, 378). But, if the case proceeds to a jury trial under Pennsylvania
law, any award of compensatory damages could be overturned on an appeal of the final
judgment, leaving the remainder of the judgment intact. Cf. Carnegie Mellon Univ. v. Marvell
Technology Group, Ltd., 807 F.3d 1283, 1300-02 (Fed. Cir. 2015) (reversing enhancement of
damages for willfulness but affirming other aspects of judgment). Under these circumstances,
an interlocutory appeal would not materially advance the litigation.
Next, the Court also alternatively finds that an interlocutory appeal would not materially
advance the litigation due to the lengthy procedural history of this case and ensuing delays
attributable to the prior appeals. See Harris, 2009 WL 1248060, at *3-4. The Court reaches this
4

The Court notes that in its Notice of Removal filed on April 22, 2008, KBR estimated that SSG Maseth’s
future lost earnings would be $601,040.00 based on his annual basic pay of $30,052.80 and the assumption that he
would have worked an additional 20 years. (Docket No. 1 at ¶¶ 15-16). KBR did not provide specific figures for
any other aspect of compensatory damages that may be recoverable. (Id.). The Court understands that the parties
have engaged economic experts to value the claim for compensatory damages.

decision irrespective of whether a stay was imposed during such an appeal or if the case
proceeded on two tracks before both the District Court and Court of Appeals simultaneously. As
the parties are well aware, this case was filed in 2008 and unfortunately, the prior appeals have
done very little to advance the litigation in a meaningful way, resulting in years of an effective
stay of district court proceedings, with the case barely proceeding beyond KBR’s invocation of
its defenses under the political question doctrine and the combatant activities exception. (See
generally Docket Report, Civ. A. No. 08-563). The case is now finally back on track as it is
approaching the close of fact discovery, with dispositive motions and Daubert motions due to be
filed in the near future, argument set on same in July of 2016 and rulings to follow. (Docket No.
348).5 This briefing schedule was issued given KBR’s repeated statements that it has several
meritorious motions for summary judgment that it intends to file. (Id. at 8-11). Of course, a
court order granting summary judgment for KBR could moot any pending interlocutory appeal
and would prove to have wasted scarce judicial resources at the appellate level, along with the
time and efforts of the parties and their counsel to present their positions on the appeal to the
appellate court.
In the earlier opinion denying KBR’s first motion for an interlocutory appeal, this Court
referenced Federal Rule of Civil Procedure 1, see Harris, 2009 WL 1248060 at *4, n.1, which
then stated that the Federal Rules “should be construed and administered to secure the just,
speedy, and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1
5

The Court’s Order states that:
3. Completion of all remaining discovery ends 4/29/16;
4. All remaining dispositive motions and Daubert motions are due by 5/20/16;
5. Any responses are due by 6/17/16;
6. Any replies are due by 7/1/16;
7. Any surreplies are due by 7/15/16;
8. Motion Hearing and Argument are set on July 19, 20 and 21, 2016 starting
each day at 9:30 a.m. in Courtroom 5B, 5th Floor, United States Courthouse,
700 Grant Street, Pittsburgh, Pennsylvania.
(Docket No. 348).

(2007). Rule 1 was amended as of December 1, 20156 and now provides that the Federal Rules
“should be construed, administered, and employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1 (2015)
(emphasis added).

Recently, the District Court in Summy-Long v. the Pennsylvania State

University, et al., 2016 WL 74767 (M.D. Pa. Jan. 7, 2016), discussed the amendments to Rule 1
and Chief Justice John Roberts’ comments as to same in the Supreme Court of the United States’
2015 Year-end Report on the Federal Judiciary.

The Summy-Long Court focused on the

following statements by Chief Justice Roberts that provide further guidance to the Court in this
situation:
Although Rule 1 “has been expanded by a mere eight words,”
Chief Justice Roberts wrote, “those are words that judges and
practitioners must take to heart.” As the Chief Justice emphasized:
The underscored words make express the obligation of
judges and lawyers to work cooperatively in controlling the
expense and time demands of litigation—an obligation
given effect in the amendments that follow. The new
passage highlights the point that lawyers— though
representing adverse parties—have an affirmative duty to
work together, and with the court, to achieve prompt and
efficient resolutions of disputes.
Accordingly, it is now unmistakable that the Court and the parties
in any federal civil action must constantly strive to resolve
unsettled disputes with the ultimate end of a “just, speedy, and
inexpensive determination of every action and proceeding.”
Id. at *7-8 (internal quotations citations omitted).
In light of Summy-Long, which this Court finds persuasive and Chief Justice Robert’s
comments regarding the newly revised Rule 1, this Court cannot support an interlocutory appeal
at this juncture. Id. To reiterate, the question presented by KBR is overbroad and the dispute
6

The Court notes that the 2015 version of the Federal Rules of Civil Procedure apply to this ongoing action
to the extent practicable. See FED. R. CIV. P. Refs & Annos (Order of April 29, 2015) (“the foregoing amendments
to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in
civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”).

that this Court actually decided is too narrow for any decision by the Court of Appeals to
materially advance the termination of this litigation. It is apparent that additional District Court
proceedings would be necessary at the conclusion of any such appeal. Moreover, after the roller
coaster ride caused by the prior appeals, this case is finally back on track before the District
Court and the permission of an interlocutory appeal would cause unnecessary costs, expenses
and further delays in this matter, counter to the dictates of Rule 1. From this point forward, it is
the shared duty of the Court and the parties to bring this litigation to a final judgment as
promptly, efficiently, and inexpensively as possible. FED. R. CIV. P. 1 (2015).
For these reasons, the Court concludes that KBR has not met its burden to show that an
interlocutory appeal would materially advance the termination of this litigation.
4. Discretion of the Court
Even if the Court found that all of the § 1292(b) factors had been met, the Court retains
broad discretion to deny KBR’s request for an interlocutory appeal. See Bachowski, 545 F.2d at
368. For many of the same reasons already expressed, this Court alternatively holds that it
declines the interlocutory appeal as a matter of discretion. It is this Court’s opinion that this case
should proceed to a final judgment in the District Court at which time an appeal can be taken on
any or all of the challenged issues. “Certification is not to be granted routinely, but is to be used
in the rare cases where an immediate appeal will avoid costly and protracted litigation.” Bush v.
Adams, 629 F. Supp. 2d 468, 474 (E.D. Pa. 2009) (citations omitted). This is not one of the rare
instances where an interlocutory appeal should be permitted.7 Accordingly, KBR’s motion fails
for this reason as well.
7

The case management statistics produced by the Administrative Office of the Courts demonstrate that
interlocutory appeals are indeed rare—only 2 applications for interlocutory appeals were submitted by litigants to
the United States Court of Appeals for the Third Circuit during the year ending June 30, 2015. See United States
Courts, Federal Court Management Statistics, June 2015, available at: http://www.uscourts.gov/statistics-

IV.

CONCLUSION
Based on the foregoing, KBR’s Motion [352] is DENIED. An appropriate Order follows.

s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: April 27, 2016
cc/ecf: All counsel of record.

reports/federal-court-management-statistics-june-2015 (last visited 4/26/16). The statistics from the past 6 years
further show that 2.33 applications of this type have been submitted annually. Id.