potential cost to the parties and the court if this matter proceeds to trial and is later dismissed by the Court of Appeals on jurisdictional grounds.
The second element of the certification analysis, and the one on which the parties most clearly differ, is whether there is a substantial ground for difference of opinion on the issue to be appealed. The question whether a "national contacts" analysis is appropriate when evaluating personal jurisdiction in a federal question suit against an alien defendant is one on which no appellate court has ruled. However, the mere fact that the appeal would present a question of first impression is not, of itself, sufficient to show that the question is one on which there is a substantial ground for difference of opinion. 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure, § 3930 n. 6 (1977 & Supp.1983).
The question whether to apply the "national contacts" test in a case similar to the present suit has been faced by other district courts with inconsistent results. For example, district judges in Utah and Connecticut as well as other judges in this district have applied the "national contacts" analysis. Worldwide Marine Transport Corp. v. Marine Transport Service, 527 F. Supp. 581 (E.D.Pa.1981); Cryomedics, Inc. v. Spembly, Limited, 397 F. Supp. 287 (D.Conn.1975); Engineered Sports Products v. Brunswick Corp., 362 F. Supp. 722 (D.Utah 1973); Alco Standard Corporation v. Benalal, 345 F. Supp. 14 (E.D.Pa.1972). But one of my colleagues in this district has rejected the analysis. Superior Coal Co. v. Ruhrkohle, A.G., 83 F.R.D. 414 (E.D.Pa.1979).
The mere fact that a substantially greater number of judges have resolved the issue one way rather than another does not, of itself, tend to show that there is no substantial ground for difference of opinion. It is the duty of the district judge faced with a motion for certification to analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is a substantial ground for dispute. Although, as I stated in my earlier opinion in this case, "I find Judge Newman's Cryomedics analysis more persuasive" than that of Judge Troutman in Superior Coal Co., I recognize that the arguments in support of the opposite conclusion are not insubstantial. Thus, I find that there is a ground for difference of opinion sufficient to warrant certification of the question for appeal in light of the other facts and circumstances of this case.
Therefore, I find that all three elements of the test for certification created by § 1292(b) have been shown in the present case. Though I recognize that certification is only appropriate in exceptional circumstances, I conclude that this is such a case. When the facts of the present case and the issue to be presented on appeal are considered as a whole, the balance tips in favor of immediate review of the question of in personam jurisdiction.
Accordingly, in an order accompanying this Memorandum Opinion, defendant's motion pursuant to 28 U.S.C. § 1292(b) will be granted and the question of in personam jurisdiction will be certified for appeal.
For the reasons stated in the accompanying Memorandum Opinion, I am of the opinion that the Order of this court dated April 13, 1983, involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of the litigation. Accordingly, the defendant's motion for certification is GRANTED and the Order of April 13, 1983, is hereby CERTIFIED to the court of appeals for review pursuant to 28 U.S.C. § 1292(b).
The defendant is a West German citizen doing business as a sole proprietor. He is being sued in the Eastern District of Pennsylvania for alleged violations of the United States patent laws. This court has determined that defendant has carried on certain significant business activities in the United States, but that his contacts with Pennsylvania would be constitutionally insufficient to support the exercise of in personam jurisdiction over defendant in this district if defendant were being sued on a state law cause of action. The controlling question of law certified to the court of appeals is whether, because defendant is being sued in the Eastern District of Pennsylvania on a claim arising under federal law, in personam jurisdiction in this district is constitutionally supportable on the basis of the defendant's aggregate contacts with the United States taken as a whole?
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