United States District Court, E.D. Pennsylvania
Darnell Jones, II J.
NOW, this 27th day of March, 2017, upon
consideration of Plaintiff's Motion for Reconsideration
and/or for Permission to Appeal (ECF No. 9) and
Defendants' Opposition thereto (ECF No. 10), it is hereby
ORDERED that said Motion is DENIED.
moves for reconsideration of this Court's February 21,
2017 Order transferring this case to the U.S. District Court
for the District of South Carolina pursuant to the
first-filed rule and 28 U.S.C. § 1404(a), and/or for
permission to file an interlocutory appeal pursuant to 28
U.S.C. § 1292(b). This Court assumes the parties'
familiarity with the facts.
for immediate appeal is improper. Under section 1292(b), a
district court may certify an order, not otherwise
appealable, if the court is of the opinion that the
“order involves [i] a controlling question of law as to
which [ii] there is substantial ground for difference of
opinion and [iii] that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation[.]” See Katz v. Carte Blanche
Corp., 496 F.2d 747, 754 (3d Cir. 1974). An order must
satisfy all three statutory criteria to be certifiable, but
the district court ultimately has discretion to grant or deny
the certification. Id.
party cites to any case in which a court certified or denied
certification for an immediate appeal of a venue change
pursuant to the first-filed rule or section 1404(a). This
Court's research revealed two relevant, out-of-circuit
cases that reached opposite results. Compare Terra
Int'l, Inc. v. Mississippi Chem. Corp., 922 F.Supp.
1334, 1384-85 (N.D. Iowa 1996) (holding the first-filed rule
did not supersede a forum selection clause and certifying
order transferring venue under section 1404(a)), with
Michelin N. Am., Inc. v. Inter City Tire & Auto Ctr.,
Inc., No. 13-1067, 2013 WL 5946109, at *2 (D.S.C. Nov.
6, 2013) (declining to certify order denying change of venue
under exceptions to first-filed rule and section 1404(a)).
The Third Circuit has observed, in dicta, that
certification of an order changing venue may be
appropriate in a case where the “change of venue would
result in a reversal after final judgment.”
Katz, 496 F.2d at 755.
as a threshold matter, that immediate appeal of an order
transferring venue is appropriate, Plaintiff's motion for
certification is denied because it has not shown that the
February 21 Order satisfies section 1292(b)'s three
statutory criteria. See Orson, Inc. v. Miramax Film
Corp., 867 F.Supp. 319, 320 (E.D. Pa. 1994)
(“burden is on the movant to demonstrate that a 1292(b)
appeal is warranted.”). First, Plaintiff has
proffered no compelling reason why it cannot litigate this
case in South Carolina, or why its rights might be curtailed
by having to pursue this matter there. Lastly, as this Court
previously found in deciding to transfer venue, Schulmerich
could have legally and practically avoided this situation had
it simply brought its federal claims in federal court from
the outset. Because this Court's decision was
“rooted in the facts of [this] particular case, ”
Plaintiff has not raised a “question of law.”
Michelin, 2013 WL 5946109, at *4 (alteration in
original). Furthermore Plaintiff does not raise a
“controlling question of law” because,
even if the February 21 Order were erroneous, it would not
constitute “reversible error on final appeal.”
Katz, 496 F.2d at 755 (emphasis added). There is no
indication, for example, that the federal district court in
South Carolina lacks jurisdiction or that any crucial
witnesses would be beyond the reach of its subpoena power.
See id. Nor has the Plaintiff argued that the
question presented is sufficiently “serious to the
conduct of the litigation, either practically or legally,
” to warrant interlocutory appeal. Id.;
see also Michelin, 2013 WL 5946109, at *3 (“a
controlling question of law is a narrow question of
pure law whose resolution would be completely
dispositive of the litigation, either as a legal or
practical matter”) (emphasis in original) (internal
quotation marks omitted).
even if the February 21 Order involved “a controlling
question of law, ” Plaintiff has not shown that
“there is substantial ground for difference of
opinion” as to its correctness. 28 U.S.C. §
1292(b). Plaintiff concedes that, consistent with this
Court's decision, “district courts in the Third
Circuit have generally used the removal date as the
federal filing date for an action originally brought
in state court, ” but argues that the “weight of
authority is decidedly against this Court's
position” because federal district courts
outside the Third Circuit “uniformly employ
the original filing date of the state court
action as the filing date for the First-Filed
Analysis.” Plf's Br. 4, 5 (emphasis in original).
Since the Third Circuit has not yet addressed this question,
Plaintiff believes it is entitled to an immediate appeal. But
“mere presence of a disputed issue that is a question
of first impression, standing alone, is insufficient to
demonstrate a substantial ground for difference of
opinion.” Michelin, 2013 WL 5946109, at *5
(quoting In re Flor, 79 F.3d 281, 284 (2d Cir.
1996)). Furthermore, none of the out-of-circuit cases cited
by Plaintiff address the situation presented here (i.e., a
plaintiff who did not name one of the defendants in the state
court action until after that defendant commenced a federal
action),  whereas the intra-circuit, sister-court
cases relied upon by this Court arrived at the same result
under substantially similar circumstances. See
Orson, 867 F.Supp. at 321-22 (no substantial difference
of opinion existed where movant's “argument in
support of an immediate appeal [was] essentially a rehash of
the argument” made the first time around, and the
court's “decision was entirely consistent with
existing law” as stated in the most relevant
Plaintiff fails to explain how delaying this matter to allow
an immediate appeal would “advance the ultimate
termination of the litigation, ” 28 U.S.C. §
1292(b). Defendants, on the other hand, contend that an
appeal of a solely procedural question would
unnecessarily slow down this litigation because, even if the
Third Circuit were to reverse the February 21 Order, there is
still the possibility that this Court may find it lacks
personal jurisdiction over one of the defendants (Lackey) - a
decision this Court has not yet reached and which could also
impact determination of the proper venue. See
Defs.' Br. 7. This Court agrees an appeal would
unnecessarily delay, rather than advance, the ultimate
resolution of the merits of this case whether in South
Carolina or here. See Orson, 867 F.Supp. at 322
(finding appeal would not advance litigation because “a
trial will most likely occur on the remaining issues in this
action regardless of the outcome of any interlocutory
appeal.”). In sum, certification is unavailable under
is also unwarranted. A motion for reconsideration is intended
“to correct manifest errors of law or fact or to
present newly discovered evidence.” Max's
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999). “Accordingly, a judgment
may be altered or amended if the party seeking
reconsideration shows at least one of the following grounds:
(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the
need to correct a clear error of law or fact or to prevent
manifest injustice.” Id.
those grounds apply here, and Plaintiff does not expressly
argue otherwise. Schulmerich does not point to any new
evidence or intervening change in controlling law, nor does
it seek to correct a clear error of law that resulted in a
manifest injustice. On the contrary, Plaintiff acknowledges
there is no binding precedent that mandates a different
outcome and this Court's decision is in line with
district court cases in the Third Circuit. Plf's Br. 4.
Plaintiff's mere disagreement with this Court's
opinion is not enough for reconsideration.
See Torn Ranch, Inc. v. Sunrise
Commodities, Inc., No. 09-cv-2674, 2009 WL 2834787 (N.D.
Cal. Sept. 3, 2009) (same parties involved from outset);
Greenline Indus., Inc. v. Agri-Process Innovations,
Inc., No. 08-cv-2438, 2008 WL 2951743, (N.D. Cal. July
28, 2008) (same); Fakespace Labbs, Inc. v. Robinson,
No. 99-cv-5258, 2000 WL 1721061 (N.D. Cal. Nov. 6, 2000)
(actions involved same parties from outset and plaintiff, not
defendants, removed state case after defendants commenced
federal action); MedSpring Grp., Inc. v. Atl. Healthcare
Grp., Inc., No. 05-cv-0115, 2006 WL 581018 (D. Utah Mar.
7, 2006) (same parties involved from outset and settlement
negotiations were already ongoing); 800-Flowers, Inc. v.
Intercontinental Florist, Inc., 860 F.Supp. 128
(S.D.N.Y. 1994) (same parties involved from outset);
Manufacturers Hanover Trust Co. v. Palmer Corp., 798
F.Supp. 161 (S.D.N.Y. 1992) (same two opposing parties
involved in original state court action); Igloo Prod.
Corp. v. The Mounties, Inc., 735 F.Supp. 214 (S.D. Tex.
1990) (party that filed the federal action was the same party
originally sued in state court); Pollution Prevention
Servs., Inc. v. Inter Recycling, Inc., No.
96-54-CIV-T-17A, 1996 WL 378990 (M.D. Fla. ...