United States District Court, E.D. Tennessee, Chattanooga
LADONNA CINGILLI, on behalf of herself and the Estate of Brenda Drone; JUSTIN DRONE; and JAMES GOEBEL, Plaintiffs,
L2 BOARDS, LCC; MARK BALDWIN; and JOHN DOE 1, Defendants.
MEMORANDUM OPINION AND ORDER
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. 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.
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
STANDARD OF REVIEW
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).
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.
Substantial Ground for Difference of Opinion
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).
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,
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 ...