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Cingilli v. L2 Boards, LLC

United States District Court, E.D. Tennessee, Chattanooga

December 20, 2017

LADONNA CINGILLI, on behalf of herself and the Estate of Brenda Drone; JUSTIN DRONE; and JAMES GOEBEL, Plaintiffs,
v.
L2 BOARDS, LCC; MARK BALDWIN; and JOHN DOE 1, Defendants.

          MEMORANDUM OPINION AND ORDER

         Before the Court is Defendants' motion [D. 30] to certify the Court's July 18, 2017 Order for immediate interlocutory appeal under 28 U.S.C. § 1292(b). Specifically, Defendants request that the Court certify for appeal the question of whether the Court has subject matter jurisdiction under admiralty law over Plaintiffs' claims.[1] Plaintiffs oppose Defendants' motion and assert that interlocutory appeal is not appropriate in this case [D. 33]. For the following reasons, Defendants' motion [D. 30] is denied.

         I. PROCEDURAL BACKGROUND

         Plaintiffs filed this tort action on July 19, 2016, under the Constitution's Admiralty Clause, the federal admiralty-jurisdiction statute, and general maritime law. On October 12, 2016, Defendants moved to dismiss for lack of subject matter jurisdiction. The Court denied Defendants' motion on July 18, 2017, and Defendants' motion to certify the order for interlocutory appeal followed on August 8, 2017.

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 1292(b), district courts have discretion to allow an interlocutory appeal to be taken from an order that is otherwise not appealable if: (1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion regarding that question; and (3) immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Review under § 1292(b) is to be “granted sparingly and only in exceptional cases.” In re City of Memphis, 292 F.3d 345, 350 (6th Cir. 2002). See also Kraus v. Bd. of Cnty. Road Comm'r, 364 F.2d 919, 922 (6th Cir. 1966).

         III. ANALYSIS

         The parties agree that whether admiralty jurisdiction exists presents a controlling question of law in this case. But the parties disagree as to whether there is substantial ground for difference of opinion on that question, and whether an interlocutory appeal would materially advance the termination of litigation. The Court will address each of the disputed factors in turn.

         a. Substantial Ground for Difference of Opinion

         Courts in the Sixth Circuit have found that a “substantial ground for difference of opinion” exists when:

(1) 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; (2) the question is difficult and of first impression; (3) a difference of opinion exists within the controlling circuit; or (4) the circuits are split … on a question that the Sixth Circuit has not answered.

In re Buccina, 657 Fed.Appx. 350, 351-352 (6th Cir. 2016) (quoting In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013)). Defendants argue that, in light of Supreme Court and Sixth Circuit precedent, as well as other cases from this district, there is a substantial ground for difference of opinion as to whether Plaintiffs have satisfied the test for admiralty jurisdiction. In order for a court to exercise admiralty jurisdiction under 28 U.S.C. § 1331, the plaintiff's claims must “satisfy conditions both of location and of connection with maritime activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995).

         1. Location Test

         Under the location test, a court “must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Id. In denying Defendants' motion to dismiss, the Court noted that for purposes of the locality test, “the tort ‘occurs' where the alleged negligence took effect….” Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 266 (1972). And in the Sixth Circuit, “a tort is deemed to occur at the place where injury is sustained, regardless of the place of origin of the negligent act.” Chapman v. City of Grosse Pointe Farms, 385 F.2d 962, 965 (6th Cir. 1967). Accordingly, the Court held that the alleged tort in the instance case occurred on a navigable waterway [D. 28, at 2].

         Defendants dispute the Court's reading of the precedent, and aver that, for the location test, “the issue is where the alleged breach of duty occurred and not where the plaintiff's injury first commenced and/or finally occurred.” [D. 32, at 10]. They have argued, twice now, that Chapman was abrogated by the Sixth Circuit's decision in Executive Jet Aviation, Inc. v. City of City of Cleveland, 48 F.2d 151 (6th Cir. 1971). The Court disagrees with Defendants' assessment. Executive Jet was affirmed by the Supreme Court, but not for its views on the location of a tort. The Supreme Court “refused to enter into a debate over whether the tort occurred [on land or on water], ” and affirmed on other grounds. Sisson v. Ruby, 497 U.S. 358, 361 (1990) (discussing the Supreme Court's Executive Jet ruling). Thirty years later, the Sixth Circuit cited this refusal with approval, and ...


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