Tieszen v. EBay, Inc. et al

Filing 55

ORDER denying Motion to Reconsider and Granting Motion for Certification of Interlocutory Appeal re 48 Motion for Reconsideration. Signed by U.S. District Judge Karen E. Schreier on 1/6/22. Maild to Vapah, inc. (SLW)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

RYAN TIESZEN,

4:21-CV-04002-KES
Plaintiff,

vs.
EBAY, INC., LG CHEM LTD., VAPAH,
INC., and FIRST DOE THROUGH
THIRTIETH DOE,

ORDER DENYING MOTION TO
RECONSIDER AND GRANTING
MOTION FOR CERTIFICATION OF
INTERLOCUTORY APPEAL

Defendants.

Defendant, LG Chem Ltd. (LG Chem), moves the court under Federal
Rule of Civil Procedure 60(b) to reconsider the court’s September 10, 2021,
order denying LG Chem’s motion to dismiss for lack of personal jurisdiction.
Docket 48. Alternatively, LG Chem moves for certification of the September 10,
2021, order and any order denying LG Chem’s motion for reconsideration for
immediate interlocutory appeal under 28 U.S.C. § 1292(b). Id. Plaintiff, Ryan
Tieszen, opposes both reconsideration and certification for interlocutory appeal.
Docket 53. For the following reasons, the court denies LG Chem’s motion to
reconsider and grants LG Chem’s motion for certification of interlocutory
appeal.
I.

Motion to Reconsider
The federal rules do not provide for a motion for reconsideration.

Needham v. White Lab’ys, Inc., 454 U.S. 927, 930 n.1 (1981) (Rehnquist, J.,

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dissenting). A party moving for reconsideration “leaves the characterization of
the motion to the court’s somewhat unenlightened guess . . . .” Sanders v.
Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988). Courts will scan the federal
rules to recast the relief sought to conform to the rules. See id.
LG Chem moves for reconsideration under Federal Rule of Civil
Procedure 60(b). Docket 51 at 2-4. Rule 60(b) provides that “[o]n motion and
just terms, the court may relieve a party . . . from a[n] . . . order” based on at
least one of six enumerated reasons. LG Chem did not identify a specific reason
enumerated under the Rule. See Docket 51 at 2-4. The court construes the
motion under Rule 60(b)(6)’s catch-all provision: “any other reason that
justifies relief.” In any event, whether under the catch-all provision or another
reason enumerated in the Rule, “[a] district court should grant a Rule 60(b)
motion ‘only upon an adequate showing of exceptional circumstances.’ ”
Richards v. Aramark Servs., Inc., 108 F.3d 925, 927 (8th Cir. 1997) (quoting
United States v. Tracts 10 & 11 of Lakeview Heights, 51 F.3d 117, 120 (8th Cir.
1995)). The court has “wide discretion” in ruling on a Rule 60(b) motion. Jones
v. Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008).
Here, the court reviewed its September 10, 2021, order, as well as the
affidavit of Kiwon Choi and additional briefing on the issue of personal
jurisdiction that accompanied the pending motion to reconsider. LG Chem
renews essentially the same arguments that failed to persuade the court in its
original motion to dismiss for lack of personal jurisdiction. Compare Docket 30
with Docket 51 at 2-4. Additionally, LG Chem submitted an affidavit of Kiwon
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Choi, a Sales Professional for LG Energy Solution, Ltd., a wholly owned
subsidiary of LG Chem. Docket 50. Choi asserts that “LG Chem did not sell or
distribute any 18650 lithium-ion cells in South Dakota in the five years leading
up to [Tieszen’s] alleged injury on December 14, 2017.” Id. ¶ 7. LG Chem did
not submit any affidavits stating that it did not sell 18650 lithium-ion batteries
in South Dakota prior to Tieszen’s injury in its original motion to dismiss for
lack of personal jurisdiction. 1 See generally Docket 31. LG Chem does not
allege that the affidavit of Kiwon Choi was unavailable when it filed its prior
motion to dismiss. The court declines to allow LG Chem a second bite at the
apple on its motion to dismiss, and the court “find[s] no application of an
erroneous view of the law or erroneous assessment of evidence by the district
court,” and LG Chem has not identified exceptional circumstances justifying
reconsideration. Richards, 108 F.3d at 927. Thus, the court declines to
reconsider the motion to dismiss both on the merits and on procedural

The court granted LG Chem’s co-defendant, LG Chem America, Inc.’s (LGCAI),
motion to dismiss for lack of personal jurisdiction in large part because LGCAI
included an affidavit of Hyunsoo Kim, which specifically denied that LGCAI it
had ever sold 18650 lithium-ion batteries, and its work was limited to sales of
petrochemical materials and products. Docket 16. Tieszen failed to rebut Kim’s
affidavit. The same attorney who prepared the affidavit in support of LGCAI’s
motion to dismiss also prepared the affidavit in support of LG Chem’s motion
to dismiss, but did not include a specific denial that it sold 18650 lithium-ion
batteries in South Dakota. See Docket 31. The affidavit of Kiwon Choi now
alleges that LG Chem never sold any 18650 lithium-ion batteries in South
Dakota. Docket 50. But LG Chem fails to explain how this information was
unavailable in its original motion to dismiss or whether any exceptional
circumstances justify the court’s consideration of this new evidence.
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grounds. See Symens v. Smithkline Beecham Corp., 19 F. Supp. 2d 1062, 106970 (D.S.D. 1997) rev’d in part on other grounds, 152 F.3d 1050 (8th Cir. 1998).
II.

Motion for Certification of Interlocutory Appeal
LG Chem alternatively moves for certification of the court’s order denying

its motion to dismiss for lack of personal jurisdiction and order denying motion
to reconsider for immediate interlocutory appeal under 28 U.S.C. § 1292(b). 2
Docket 48. To grant a motion for certification of interlocutory appeal under 28
U.S.C. § 1292(b), “the district court must be of the opinion that (1) the order
involves a controlling question of law; (2) there is substantial ground for
difference of opinion; and (3) certification will materially advance the ultimate
termination of the litigation.” White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994)
(citation and internal quotations omitted). LG Chem, as the movant, bears the
burden of demonstrating that the case is an exceptional one that warrants
interlocutory appeal. Id. at 376. The Eighth Circuit has cautioned that motions
for certification should be granted “sparingly.” Id.
First, the court must consider whether the issue of personal jurisdiction
involves a controlling question of law. Here, “personal jurisdiction issues are

2

28 U.S.C. § 1292(b), in pertinent part, 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 a substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, [s]he shall so state in writing
such order.
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non-discretionary and thus present controlling questions of law.” ASI, Inc. v.
Aquawood, LLC, 2021 WL 396818, at *2 (D. Minn. Feb. 4, 2021) (citing White,
43 F.3d at 377). Indeed, the parties agree that the issue of personal jurisdiction
involves a controlling question of law. Docket 53 at 6; Docket 54 at 2. Thus, the
first prong under 28 U.S.C. § 1292(b) is satisfied.
The parties disagree as to the second prong—whether there is a
substantial ground for difference of opinion on the issue. “[I]dentification of a
sufficient number of conflicting and contradictory opinions . . . provide[s]
substantial ground for disagreement.” White, 43 F.3d at 378 (internal quotation
omitted). Here, LG Chem cited to a plethora of contradictory cases—both state
and federal—on similar issues of personal jurisdiction involving LG Chem as a
defendant. See Docket 51 at 5-6; Docket 54 at 2-3. “Additionally, courts may
certify an interlocutory appeal where the question is difficult, novel and either a
question on which there is little precedent or one whose correct resolution is
not substantially guided by previous decisions, or if the question is one of first
impression.” ASI, Inc., 2021 WL 396818, at *2 (internal quotation omitted). The
court’s determination that LG Chem was subject to personal jurisdiction in
South Dakota was based primarily on the United States Supreme Court’s
decision in Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct.
1017 (2021). Ford was decided on March 25, 2021, and there is limited
precedent in the Eighth Circuit interpreting its holding. The court finds that
the issue presented in this case is one not substantially guided by previous

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decisions, and thus, is one where there is a substantial ground for difference of
opinion.
Finally, the court must determine whether certification will materially
advance the ultimate termination of the litigation. “The requirement that an
appeal may materially advance the ultimate termination of the litigation is
closely tied to the requirement that the order involve a controlling question of
law.” Charles Alan Wright & Arthur R. Miller, 16 Federal Practice and
Procedure § 3930 (3d ed). Here, certification will materially advance the
ultimate termination of the litigation because, if the Eighth Circuit disagrees
with this court on the issue of personal jurisdiction as it relates to LG Chem,
LG Chem will be dismissed as a defendant and the case will be greatly
simplified. Thus, the court finds that LG Chem has carried its burden to
demonstrate that this is an exceptional case warranting certification for
interlocutory appeal. Thus, it is
ORDERED that LG Chem’s motion to reconsider (Docket 48) is denied.
IT IS FURTHER ORDERED that LG Chem’s alternative motion for
certification of interlocutory appeal (Docket 48) is granted.
Dated January 6, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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