United States District Court, W.D. North Carolina, Asheville Division
TOMMY WILLIAM LINEBERGER and MARCELLA WILSON LINEBERGER, Plaintiffs,
CBS CORPORATION, et al., Defendants.
Reidinger United States District Judge
MATTER is before the Court on the Defendant Siemens
Corporation's Motion to Certify Interlocutory Appeal
Plaintiffs Tommy William Lineberger and Marcella Wilson
Lineberger, husband and wife, brought this diversity action
against Defendants CBS Corporation, et al., as a
result of Mr. Lineberger's alleged contraction of
mesothelioma from exposure to asbestos and products that
contain asbestos. [Doc. 1].
January 30, 2017, Siemens moved to dismiss, or, in the
alternative, for a more definite statement pursuant to Rule
12(b)(6) and 12(e) of the Federal Rules of Civil Procedure.
[Doc. 74]. On August 14, 2017, the Magistrate Judge issued a
Memorandum and Recommendation, recommending that Siemens'
motion be denied. [Doc. 126]. Siemens timely objected to the
Magistrate Judge's recommendation, arguing that the
Magistrate Judge misapplied Rule 8 of the Federal Rules of
Civil Procedure.[Doc. 132]. On September 5, 2017, this Court
overruled Siemens' objections and adopted the Memorandum
and Recommendation. [Doc. 134].
September 19, 2017, Siemens filed the present motion,
requesting that the Court amend its September 5, 2017 Order
to include certification for immediate interlocutory appeal.
[Doc. 139]. Specifically, Siemens poses the following
question for certification:
[W]hether an asbestos complaint that makes only
undifferentiated allegations against all defendants as a
collective group satisfies the pleading requirements of Rules
8 and 12(b)(6), as elucidated in Bell Atlantic Corp v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009)[?]
[Id.]. To date, Plaintiff has not filed a response
to Seimens' motion. The matter is now ripe for disposition.
to 28 U.S.C. § 1292(b), a district court may certify an
interlocutory order for immediate appeal where (1) the
“order involves a controlling question of law, ”
(2) “as to which there is substantial ground for
difference of opinion” and (3) “an immediate
appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. §
1292(b). Section 1292(b) “was not intended to allow
interlocutory appeal in ordinary suits, ” or “as
a vehicle to provide early review of difficult rulings in
hard cases.” State ex rel. Howes v. Peele, 889
F.Supp. 849, 852 (E.D. N.C. 1995) (quoting in part
Abortion Rights Mobilization, Inc. v. Regan, 552
F.Supp. 364, 366 (S.D.N.Y.1982)). Rather, section 1292(b)
“is limited to extraordinary cases where early
appellate review might avoid protracted and expensive
litigation.” Id. Further, even when “the
requirements of section 1292(b) are satisfied, the district
court has ‘unfettered discretion' to decline to
certify an interlocutory appeal if exceptional circumstances
are absent.” Manion v. Spectrum Healthcare
Res., 966 F.Supp.2d 561, 567 (E.D. N.C. 2013). Here, the
requirements of section 1292(b) have not been satisfied and,
even if they were satisfied, no exceptional circumstances
exist in this case.
Siemens has not posed a controlling question of law.
“In order for a question to be ‘controlling,
' the district court must actually have decided such
question.” Commonwealth of Virginia ex rel. Integra
Rec LLC v. Countrywide Sec. Corp., No. 3:14CV706, 2015
WL 3540473, at *4 (E.D. Va. June 3, 2015) (citations
omitted). The Court, contrary to Siemens' arguments, did
not decide whether “only undifferentiated allegations
against Defendants” is sufficient to survive a motion
to dismiss. Rather, the adopted Memorandum and Recommendation
analyzed whether the specific allegations in the
Plaintiffs' Complaint, considered under the applicable
law, were sufficient to survive Siemens' motion to
dismiss. [Doc. 126 at 5, 6]. Particularly, in this case the
Plaintiffs described in the Complaint “the type of work
Plaintiff T. Lineberger performed and allege[d] how he was
exposed to asbestos during each of these periods of
employment. In addition, Plaintiff allege[d] the exact
locations of the facilities where he worked as a freight
delivery driver. Plaintiffs also allege[d] a list of asbestos
containing products to which Plaintiff T. Lineberger was
exposed during his employment. Finally, Plaintiffs allege[d]
that Defendant was involved in the manufacture, production,
or distribution of the asbestos containing products that
Plaintiff T. Lineberger was exposed to while working at the
jobs alleged in the Complaint.” [Id. At 5].
This is not a group of “undifferentiated allegations
against the Defendants” as Defendant asserts. As such,
Siemens' posed question was not actually decided and is
not a controlling question of law.
Siemens has not shown there is substantial ground for
difference of opinion. “An issue presents a substantial
ground for difference of opinion if courts, as opposed to
parties, disagree on a controlling legal issue.”
Randolph v. ADT Sec. Servs., Inc., No. DKC 09-1790,
2012 WL 273722, at *6 (D.Md. Jan. 30, 2012). Siemens cites
and reargues the application of cases this Court has already
previously considered and found unpersuasive, particularly as
they pertain to the Complaint filed in this case. The
Court's decision involved a straightforward application
of well-known legal standards. Further, the adopted
Memorandum and Recommendation also differentiated between
unpersuasive and applicable case law by specifically citing
to the decision by the United States District Court for the
Eastern District of North Carolina in Miller v. 3M
Company, No. 5:12-Cv-00620-BR, 2013 WL 1338694, at * 2
(E.D. N.C. Apr. 1, 2013). [Doc. 126 at 6].
Siemens has not shown an immediate appeal would materially
advance the ultimate termination of this litigation. Contrary
to Siemens' arguments, an immediate appeal would only
complicate this litigation. The numerous Defendants remaining
in this case have filed Answers, discovery is proceeding, and
a mediator has already been selected.
even if the requirements of section 1292(b) had been
satisfied, there are no exceptional circumstances in this
case. Defendant Siemens has not shown that there are any
“exceptional circumstances [to] 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) (internal
quotations omitted). Moreover, an immediate appeal could
easily create more litigation and expense, as well as cause
inefficient use of the Fourth Circuit's resources.
Therefore, even ...