United States District Court, D. Maryland
TROY D. PRICE, JR
ATLANTIC RO-RO CARRIERS, INC., et al.
CATHERINE C. BLAKE, District Judge.
Price sues Atlantic Ro-Ro Carriers, Inc., Mos Shipping Company ("Mos Shipping"), and Baltic Mercur Joint Stock Company ("Baltic Mercur") under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b), alleging negligence. In September, this court issued an order granting in part and denying in part a trio of motions for summary judgment, including the denial of the defendants' motion to apply Maryland's statutory cap on noneconomic damages, Md. Code Ann., Cts. & Jud. Proc. § 11-108, to Price's claims. ( See Order 98.) Mos Shipping and Baltic Mercur now move to certify that order for interlocutory appeal under 28 U.S.C. § 1292(b). The motion has been fully briefed and no hearing is necessary to its resolution. See Local Rule 105.5 (D. Md. 2014). For the reasons explained below, that motion will be denied.
Although 28 U.S.C. § 1292(b) permits certification for interlocutory review of non-final orders, its application is reserved for "exceptional circumstances [that] 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) (quoting Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972)). Accordingly, certification "is not intended as a vehicle to provide early review of difficult rulings in hard cases." City of Charleston, S.C. v. Hotels.com, LP, 586 F.Supp.2d 538, 548 (D.S.C. 2008) (quoting Abortion Rights Mobilization, Inc. v. Regan, 552 F.Supp. 364, 366 (S.D.N.Y. 1982)). Instead, the statutory criteria for certification "must be strictly construed, " so that the interlocutory review is "used sparingly." Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989).
A district court may certify an order for interlocutory review where it determines that its decision "involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation...." 28 U.S.C. § 1292(b). Because the statute lists these criteria in the conjunctive, certification requires satisfaction of each. See e.g., Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000).
Mos Shipping and Baltic Mercur seek certification for interlocutory appeal of the court's refusal to apply Maryland's cap on noneconomic damages to a negligence action brought under 33 U.S.C. § 905(b). That issue is plainly a "question of law" within the meaning of 28 U.S.C. § 1292(b), insofar as it is "a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine'-as opposed to whether the party opposing summary judgment has raised a genuine issue of material fact.'" Lynn v. Monarch Recovery Mgmt., Inc., 953 F.Supp.2d 612, 623 (D. Md. 2013) (quoting Clark Constr. Grp., Inc. v. Allglass Sys., Inc., Civ. No. DKC-02-1590, 2005 WL 736606, at *2 (D. Md. Mar. 20, 2005)). And it is plainly a close question, about which "there is a substantial ground for difference of opinion." 28 U.S.C. § 1292(b). After all, discerning where state law may supplement general federal maritime common law "is far from easy; one might tack a sailboat into a fog bank with more confidence." Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 624 (1st Cir. 1994). Indeed, as the underlying memorandum acknowledges (Mem. 9-10), a Maryland state court has navigated this foggy doctrine differently than this court, concluding that the state's cap noneconomic damages does apply in materially similar circumstances. See McCoy v. Weeks Marine, Inc., 2009 WL 3275927, 2009 A.M.C. 1862, 1875-82 (Md. Cir. Ct. July 8, 2009).
Immediate appellate consideration of this issue, however, will not "materially advance termination of the litigation." 28 U.S.C. § 1292(b). To evaluate that criterion, "a district court should consider whether an immediate appeal would: (1) eliminate the need for trial, (2) eliminate complex issues so as to simplify the trial, or (3) eliminate issues to make discovery easier and less costly.'" Lynn, 953 F.Supp.2d at 626 (quoting Orson, Inc. v. Miramax Film Corp., 867 F.Supp. 319, 322 (E.D. Pa. 1994)). Even if the Fourth Circuit reversed this court's prior order, Price would still be entitled to seek noneconomic damages up to $695, 000, the statutory cap. The applicability of that cap would thus do nothing to eliminate the need for a trial, to streamline the presentation of proof, or to limit the scope of discovery. Indeed, Maryland expressly prohibits informing the jury of the applicability of a statutory cap on noneconomic damages, which courts apply only after issuance of the jury's damages determination. See Md. Code Ann., Cts. & Jud. Proc. § 11-108(d). "When litigation will be conducted in substantially the same manner regardless of [the court's] decision, the appeal cannot be said to materially advance the ultimate termination of the litigation." In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002) (alteration in original) (quoting White v. Nix, 43 F.3d 374, 378-79 (8th Cir. 1994)).
Mos Shipping and Baltic Mercur urge a more flexible reading of the 28 U.S.C. § 1292(b), one that would permit certification of questions that might facilitate settlement. For support, they invoke Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535 (7th Cir. 2012), which authorized the appeal of an interlocutory order denying dismissal of one of the plaintiff's two statutory claims in a class action. Although the plaintiff pleaded two grounds for relief, Sterk reasoned that review of the legal sufficiency of one of those claims would shorten the litigation, "especially since that claim appear[ed] to be the plaintiff's main one, " while the remaining claim, not challenged on appeal, was "perhaps just a life jacket." Id. at 536. That circumstance-the prospect that immediate review would substantially shorten and simplify the litigation-would be justification enough to permit interlocutory appeal, provided the remaining statutory criteria were also satisfied. See, e.g., In re Va. Elec. & Power Co., 539 F.2d 357, 364 & n.10 (4th Cir. 1976). Yet Sterk reinforced that conclusion with an additional observation, noting that "uncertainty about the status of the [challenged] claim may delay settlement (almost all class actions are settled rather than tried), and by doing so further protract the litigation." 672 F.3d at 536.
As that summary suggests, Sterk does not entirely support the defendants' reading of it. The prospect of facilitating settlement was, at best, a secondary observation in that case, neither necessary nor sufficient to its resolution. Where, as here, a party's motion relies exclusively on the speculative prospect of facilitating settlement, certification is inappropriate. To hold otherwise would threaten to expand the scope of § 1292(b) well beyond the narrow range of extraordinary circumstances for which it is reserved. See, e.g., Coopers & Lybrand, 437 U.S. at 475; Myles, 881 F.2d at 127. After all, "[r]esolution of nearly any disputed issue of law will to a greater or lesser extent, make settlement more probable." Ashmore v. N.E. Petroleum Div. of Cargill, Inc., 855 F.Supp. 438, 440 n.3 (D. Me. 1994).
For the reasons stated above, the motion to certify the court's previous order pursuant to 28 ...