Rhea Drugstore, Inc. v. Smith & Nephew, Inc.

Filing 52

ORDER denying 51 Motion to Certify Interlocutory Appeal. Signed by Judge Jon Phipps McCalla on 6/24/2015. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
RHEA DRUGSTORE, INC.,
individually and on behalf of
all others similarly situated,
Plaintiff,
v.
SMITH & NEPHEW, INC.,
Defendant.
SMITH & NEPHEW, INC.,
Third-Party Plaintiff,
v.
MODERN MARKETING CONCEPTS,
INC.,
Third-Party Defendant.

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No. 2:15-cv-02060-JPM-tmp
JURY DEMAND

ORDER DENYING MOTION TO CERTIFY INTERLOCUTORY APPEAL
Before the court is Defendant Smith & Nephew, Inc.’s (S&N)
Motion to Certify Interlocutory Appeal Pursuant to 28 U.S.C.
§ 1292(b), filed June 22, 2015.

(ECF No. 51.)

S&N moves the

Court to amend its June 10, 2015, Order Denying Motion to
Dismiss (ECF No. 49), Rhea Drugstore, Inc. v. Smith & Nephew,
Inc., No. 2:15-cv-02060-JPM-tmp, 2015 WL 3649061, at *1 (W.D.
Tenn. June 10, 2015) 1, to include language pursuant to 28 U.S.C.

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The procedural and factual background of this case are described in the
Order Denying Motion to Dismiss.

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§ 1292(b) certifying the issues addressed in that order for
interlocutory appeal.
I.

(ECF No. 51.)

LEGAL STANDARD
A court may certify an order for interlocutory appeal

pursuant to 28 U.S.C. § 1292(b) only if three conditions are
met: “(1) the order involves a controlling question of law,
(2) a substantial ground for difference of opinion exists
regarding the correctness of the decision, and (3) an immediate
appeal may materially advance the ultimate termination of the
litigation.”

In re City of Memphis, 293 F.3d 345, 350 (6th Cir.

2002).
II.

ANALYSIS
Even assuming the first and third conditions are met, for

the following reasons, the Court finds the second condition is
not.

“Substantial grounds for a difference of opinion exist

when (1) the issue is difficult and of first impression, (2) a
difference of opinion exists within the controlling circuit, or
(3) the circuits are split on the issue.”

W. Tennessee Chapter

of Associated Builders & Contractors, Inc. v. City of Memphis,
138 F. Supp. 2d 1015, 1019 (W.D. Tenn. 2000) (internal citations
omitted).
A.

Whether the Issue is Difficult and of First Impression

Although the exact issue presented to the Court is of first
impression, the Court does not find the issue sufficiently
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complicated as to render it fit for immediate appeal simply by
virtue of its complexity.

Only “exceptional circumstances

justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).

The

complexity of the issues presented does not, on its own, justify
such a departure.
B.

Whether There is a Difference of Opinion in the Sixth
Circuit

S&N points to no difference of opinion in the Sixth Circuit
on the controlling issues presented (See ECF No. 51-1 at 4–5) -and the Court is aware of none.
C.

Whether There is a Circuit Split

As to the existence of a circuit split, according to S&N,
there is a “split[] among the circuits” on cases “involving the
interplay between mootness and early, unaccepted offers of
judgment.”

(ECF No. 51-1 at 5.)

S&N fails, however, to

identify any circuit court decisions in conflict with the
Court’s Order Denying Motion to Dismiss (ECF No. 49).

The only

case S&N cites in clear support of its position is the decision
of a state intermediate appellate court.

(See ECF No. 27-1 at

8–9 (citing Ballard RN Ctr., Inc. v. Kohll’s Pharmacy &
Homecare, Inc., 22 N.E.3d 137, appeal allowed, 23 N.E.3d 1199
(Ill. 2015).)

The existence of a contrary opinion in some court

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in some state, however, cannot justify a departure from “the
basic policy of postponing appellate review until after the
entry of a final judgment.”
D.

Cf. Livesay, 437 U.S. at 475.

S&N’s Additional Arguments

Even despite the absence of a clear circuit split, S&N
argues that there are two reasons the Court should still find
substantial grounds for a difference of opinion.
First, S&N avers that the reasoning in Genesis Healthcare
Corp. v. Symczyk, 133 S. Ct. 1523 (2013), is in significant
tension with the Court’s Order Denying Motion to Dismiss.
ECF No. 51-1 at 4–5.)

The Court disagrees.

(See

In Genesis, the

Supreme Court held that “the mere presence of collective-action
allegations in the complaint cannot save the suit from mootness
once the individual claim is satisfied.”

133 S. Ct. at 1529.

The Supreme Court was careful to note that the plaintiff “had
not yet moved for ‘conditional certification’ when her claim
became moot, nor had the District Court anticipatorily ruled on
any such request.”

Id. at 1530.

Consequently, the Supreme

Court held that because the plaintiff’s claim “became moot prior
to these events,” the relation back doctrine outlined in United
States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980), 2 could not

2

The Supreme Court held in Geraghty that class certification relates back to
the filing of the complaint when a representative’s claims “are so inherently
transitory that the trial court will not have even enough time to rule on a
motion for class certification before the proposed representative’s
individual interest expires could not save her claim.” 445 U.S. at 399.

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save her claim.

133 S. Ct. at 1530.

In the instant case,

Plaintiff filed a Motion for Class Certification (ECF No. 12)
prior to an offer of judgment being made.
Inc., 2015 WL 3649061, at *1.

See Rhea Drugstore,

Accordingly, the Court’s reliance

on Geraghty is not in tension with Genesis.
Second, S&N argues the existence of pending appeals in
Gomez v. Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014)
cert. granted, No. 14-857, 2015 WL 246885 (U.S. May 18, 2015),
and Mey v. N. Am. Bancard, LLC, No. 14-CV-11331, 2014 WL
6686773, at *1 (E.D. Mich. Nov. 26, 2014), “weigh in favor of
S&N’s request for certification of the issues for interlocutory
appeal.”

(ECF No. 51-1 at 5.)

S&N in effect argues that the

existence of a pending appeal that could theoretically reach a
different result is sufficient to find a substantial ground for
difference of opinion.

Such a holding would “open the

floodgates to a vast number of appeals from interlocutory orders
in ordinary litigation” in contravention of § 1292(b).

See

Kraus v. Bd. of Cnty. Rd. Comm’rs for Kent Cnty., 364 F.2d 919,
922 (6th Cir. 1966).

The existence of pending appeals in Gomez

and Mey, therefore, does not weigh in favor of finding a
substantial ground for difference of opinion.

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III. CONCLUSION
For the foregoing reasons, the Court finds that
interlocutory appeal is not warranted pursuant to 28 U.S.C.
§ 1292(b).

Accordingly, S&N’s Motion (ECF No. 51) is DENIED.

IT IS SO ORDERED, this 24th day of June, 2015.

/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

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