KOERNER v. HANKINS et al
Filing
47
MEMORANDUM OPINION AND ORDER denying 41 Motion to Amend/Correct. Signed by Judge Terrence F. McVerry on 2/13/12. (mh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 2:11-cv-492
)
)
)
)
MARK KOERNER,
Plaintiff,
v
RAYME HANKINS
Defendant.
MEMORANDUM OPINION AND ORDER OF COURT
Pending now before the Court is PLAINTIFF’S MOTION TO AMEND ORDER
PURSUANT TO F.R.A.P. 5(a)(3) (Document No. 41). Defendant Rayme Hankins has joined
the motion (Document No. 43). Former Defendants Eagle Pipeline Construction, Inc., Elkhorn
Construction, Inc. and Elkhorn Construction, Inc. t/d/b/a/ Elkhorn Plant Construction, Inc.
(collectively “Eagle/Elkhorn”) filed a response in opposition (Document No. 45).1 Plaintiff filed
a surreply (Document No. 46) and the motion is ripe for disposition.
Procedural Background
This case arose out of an automobile accident caused by a welding rig truck driven by
Defendant Rayme Hankins. The parties bifurcated discovery, with Phase 1 limited to whether
Hankins was within the scope of his employment at the time of the accident, such that Plaintiff
Mark Koerner could recover damages from Hankins’ employer, Eagle/Elkhorn. On January 30,
2012 the Court issued a Memorandum Opinion and Order which resolved the parties’ crossmotions for partial summary judgment on the “scope of employment” issue. The Court
concluded that Hankins was not within the scope of his employment at the time of the accident;
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Because Plaintiff seeks to bring Eagle/Elkhorn back into the case through an interlocutory appeal, the Court invited
Eagle/Elkhorn to respond, while taking the question of whether to re-activate them as parties under advisement.
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dismissed the Eagle/Elkhorn Defendants from the case; amended the caption; and ordered the
remaining parties (Koerner and Hankins) to proceed with the case. Koerner and Hankins now
request that the Court certify its January 30th decision for interlocutory appeal.
Legal Analysis
Appeals prior to final judgment are disfavored, but 28 U.S.C. § 1292(b) provides an
avenue for interlocutory relief:
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.
In Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010), the Court noted that § 1292(b) is
jurisdictional and represents a “narrow exception to the final judgment rule.”
A “controlling question of law” is somewhat broadly defined to encompass not only
“every order which, if erroneous, would be reversible error on final appeal,” but also those orders
which are ‘serious to the conduct of the litigation, either practically or legally.’” Litgo New
Jersey, Inc. v. Martin, 2011 WL 1134676 at *3 (D.N.J. 2011) (citing Katz v. Carte Blanche
Corp., 496 F.2d 747, 755 (3d Cir. 1974)). Courts are to evaluate this prong practically rather
than mechanically and to consider its time and litigants’ expenses.
A “substantial ground for difference of opinion” must arise out of doubt as to the correct
legal standard, such as conflicting precedent, the absence of controlling law, or complex
statutory interpretation. Id. (citing In re Dwek, 2011 WL 487582 at *4 (D.N.J. 2011). A party's
strong disagreement with the Court's ruling does not constitute a “substantial ground for
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difference of opinion.” Couch, 611 F.3d at 633. Nor does a dispute over the application of
settled law to a particular set of facts. Id. (citations omitted).
Finally, a § 1292(b) certification “materially advances the ultimate termination of the
litigation” where the interlocutory appeal eliminates: “(1) the need for trial; (2) complex issues
that would complicate the trial; or (3) issues that would make discovery more costly or
burdensome.” Litgo, 2011 WL 1134676 at *3 (citations omitted).
The party pursuing interlocutory appeal bears the burden to demonstrate that all three of
the certification factors have been met. Morgan v. Ford Motor Co., 2007 WL 269806 at *2
(D.N.J. Jan.25, 2007) (citing Caterpillar, Inc. v. Lewis, 519 U.S. 61, 74 (1996)). Even if the
criteria are satisfied, the decision to grant certification remains wholly within the discretion of
the district court. Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976). Eagle/Elkhorn
contends that none of the § 1292(b) requirements have been met.
The Court concludes that § 1292(b) certification is not warranted under the facts and
circumstances of this case. The essence of the dispute between Eagle/Elkhorn, Koerner and
Hankins is not “legal” at all. The parties agree that Pennsylvania agency law applies, as set forth
in the Restatement (Second) of Agency. Assuming, arguendo, that a “controlling issue of law”
exists, there is no “substantial ground for difference of opinion.” Rather, the “scope of
employment” issue involves application of the evidentiary record to the settled law. See Couch,
611 F.3d at 633. Moreover, after fully considering the applicable principles of agency law and
the terms of Hankins’ employment, the Court is convinced that the “scope of employment” issue
was not a particularly close call.
The Court recognizes and appreciates the practical impediments that would be associated
with requiring Plaintiff to obtain a final judgment against Hankins before pursuing its appeal
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against Eagle/Elkhorn. The Court also acknowledges the potential concerns which may arise in
the future if Hankins proceeds pro se. But at this juncture, Hankins remains represented by able
counsel. The potentiality of a separate declaratory judgment action with Hankins’ insurer is also
speculative. In sum, Movants have failed to satisfy all of the requirements for § 1292(b)
certification. In the alternative, assuming arguendo that the elements have been met, the Court
declines to exercise its discretion to certify an interlocutory appeal.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
Plaintiff,
)
) 2:11-cv-492
v
)
RAYME HANKINS
)
)
Defendant.
)
ORDER OF COURT
MARK KOERNER,
AND NOW, this 13th day of February 2012, for the reasons set forth in the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that
PLAINTIFF’S MOTION TO AMEND ORDER PURSUANT TO F.R.A.P. 5(a)(3) (Document
No. 41) is DENIED.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
cc:
Erin K. Rudert, Esquire
Email: erudert@edgarsnyder.com
Todd Berkey, Esquire
Email: tberkey@edgarsnyder.com
Daniel R. Bentz, Esquire
Email: dbentz@mooclaw.com
Gerard J. Cipriani, Esquire
Email: gcipriani@c-wlaw.com
Rosemary A. Marchesani, Esquire
Email: rmarchesani@c-wlaw.com
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