United States District Court, D. Maryland
ESTATE OF ARTURO GIRON ALVAREZ, THE 773 INDIVIDUALS IDENTIFIED ON EXHIBIT 1 TO THE COMPLAINT and UNKNOWN USE PLAINTIFFS, Plaintiffs,
THE JOHNS HOPKINS UNIVERSITY, THE JOHNS HOPKINS UNIVERSITY SCHOOL OF MEDICINE, THE JOHNS HOPKINS HOSPITAL, THE JOHNS HOPKINS BLOOMBERG SCHOOL OF PUBLIC HEALTH, THE JOHNS HOPKINS HEALTH SYSTEMS CORPORATION, THE ROCKEFELLER FOUNDATION and BRISTOL-MYERS SQUIBB COMPANY, Defendants.
Theodore D. Chuang, United States District Judge.
January 3, 2019, this Court issued a Memorandum Opinion and
Order denying a Motion for Judgment on the Pleadings filed by
Defendants. On February 1, 2019, Defendants
the Johns Hopkins University, four affiliated entities, and
Bristol-Myers Squibb Company filed a Motion to Certify
Interlocutory Appeal, requesting that the Court certify its
January 3, 2019 Order for an interlocutory appeal under 28
U.S.C.S 1292(b). Upon review of the submitted materials, the
Court finds that no hearing is necessary. See D. Md.
Local R. 105.6. For the reasons set forth below, the Motion
district court may certify for appeal an order that is not
otherwise appealable if it concludes (1) that the order
involves a controlling question of law; (2) as to which there
is substantial ground for difference of opinion; and (3) that
an immediate appeal from the order may materially advance the
ultimate termination of the litigation. 28 U.S.C. S 1292(b)
(2012). Piecemeal interlocutory appeals should be
"avoided" because review of non-final judgments is
"effectively and more efficiently reviewed together in
one appeal" at the end of litigation. James v.
Jacobson, 6 F.3d 233, 237(4thCir. 1993). Since
certification under S 1292(b) should be granted
"sparingly," the statute's requirements must be
"strictly construed." Myles v. Laffitte,
881 F.2d 125, 127 (4th Cir. 1989). Plaintiffs do not contest
that the Order at issue involved "a controlling question
of law"" At issue are the other two prongs of S
"controlling law is unclear," there may be
substantial grounds for difference of opinion for purposes of
S 1292(b). Couch v. Telescope Inc., 611 F.3d 629,
633 (9th Cir. 2010). Therefore, courts find substantial
grounds "where the circuits are in dispute on the
question and the court of appeals of the circuit has not
spoken on the point, if complicated questions arise under
foreign law, or if novel and difficult questions of first
impression are presented." Id. However, the
"mere presence of a disputed issue that is a question of
first impression, standing alone, is insufficient."
In re Flor, 79 F.3d 281, 284 (2d Cir. 1996). Lack of
unanimity among courts, North Carolina ex rel Howes v.
W.R. Peele, Sr. Trust, 889 F.Supp. 849, 852 (E.D. N.C.
1995), and a lack of relevant authority, Union County v.
Piper Jaffray & Co., Inc., 525 F.3d 643, 647 (8th
Cir. 2008), do not suffice. Similarly, a party's
disagreement with the decision of the district court, no
matter how strong, does not create substantial grounds.
Couch, 611 F.3d at 633.
case, the Court's Order addressed the question of whether
domestic corporations can be defendants under the Alien Tort
Statute ("ATS"), 28 U.S.C. S 1350, in light of the
United States Supreme Court's decision in Jesner v.
Arab Bank, PLC, 138 S.Ct. 1386 (2018), which foreclosed
claims brought under the ATS against foreign corporations.
Id. at 1407. The Supreme Court was closely divided
as to foreign corporate liability and left unresolved a
circuit split regarding whether liability for domestic
corporations is permissible under the ATS. See Id.
at 1396, 1407. The United States Court of Appeals for the
Second Circuit has held that corporate liability is not
available under the ATS. See Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 145 (2d Cir. 2010). The
court's primary reasoning was that the issue of liability
under the ATS is governed by customary international law, and
that corporate liability is not a universal international
norm. Id. at 118, 120, 130, 145. In contrast, the
United States Court of Appeals for the Ninth Circuit, before
Jesner, held that corporate liability is available
under the ATS. Doe I v. Nestle USA, Inc., 766 F.3d
1013, 1021-22 (9th Cir. 2014). The court reasoned that
"there is no categorical rule of corporate immunity or
liability" and whether a corporation can be subject to
ATS liability is analyzed in reference to the violation of
customary international law alleged by the plaintiff.
Id. at 1022. Other circuits reached the same
conclusion. Doe VIII v. Exxon Mobil Corp., 654 F.3d
11, 40-77 (D.C. Cir. 2011) (concluding that under the ATS,
domestic law supplies the source of law on the question of
corporate liability), vacated on other grounds, 527
Fed.Appx. 7 (D.C. Cir. 2013); Flomo v. Firestone Nat.
Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011).
Following Jesner, the Ninth Circuit reaffirmed its
position as to domestic corporations on the grounds that
Jesner related only to foreign corporation.. See
Doe v. Nestle S.A., 906 F.3d 1120, 1124 (9th Cir. 2018).
The United States Court of Appeals for the Fourth Circuit has
not yet weighed in on whether domestic corporate liability is
available under the ATS. See Al Shimari v. CACI Premier
Tech., Inc., 758 F.3d 516, 525 n.5 (4th Cir. 2014)
(before Jesner, noting that the question of
corporate liability under the ATS was not before the court).
the Second Circuit has been the only circuit to bar domestic
corporate liability under the ATS, the plurality in
Jesner stated that the Second Circuit position had
"considerable force and weight." Jesner,
138 S.Ct. at 1400 (plurality opinion). Moreover, the
Jesner majority focused on the importance of
Congress's role in "imposing a new substantive legal
liability." Jesner, 138 S.Ct. at 1402 (quoting
Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017)). At
this point, it is undisputed that Congress has not codified a
cause of action under the ATS against domestic corporations.
Thus, although Jesner did not address or resolve the
question of whether domestic corporate liability is available
under the ATS, it provides some support for the Second
Circuit's position and highlights the continuing circuit
split on this issue. Under these circumstances, the Court
concludes that there is "substantial ground" for
difference of opinion. See Couch, 611 F.3d at 633.
the material-advancement prong, certification of an
interlocutory appeal is appropriate only "in exceptional
situations in which doing so would avoid protracted and
expensive litigation." Fannin v. CSX Transp.,
Inc., 873 F.2d 1438, 1989 WL 42583, at *2 (4th Cir.
1989) (quoting In re Cement Antitrust Litig., 673
F.2d 1020, 1026 (9th Cir. 1982)); see Reese v. BP
Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.
2011) (holding that an interlocutory appeal would materially
advance resolution of litigation where reversal by the
appellate court would dismiss one defendant and resolve
multiple claims against all defendants, even though it would
not resolve the entire case). Here, although the period for
fact discovery has ended, expert discovery is ongoing,
discovery issues remain, and discovery motions remain to be
resolved. Going forward, the parties have signaled that
extensive pre-trial dispositive motions will be filed. If the
case proceeds to trial, it will likely require testimony by
foreign witnesses and multiple expert witnesses. Where all
Defendants are domestic corporations, if the Fourth Circuit
were to rule in Defendants' favor on the issue of
domestic corporate liability under the ATS, such an order
would result in the dismissal of all claims against all
defendants, rather than only forcing litigation to restart in
state court, see Hall v. Greystar Mgmt. Servs.,
L.P., 193 F.Supp.3d 522, 528 (D. Md. 2016) (declining to
certify an appeal under S 1292(b)), or resolving only one,
noncontrolling issue that would not dispose of the entire
case. Such a ruling would "materially advance" the
resolution of the litigation. 28 U.S.C. S 1292(b).
the Court finds that the three requirements of S 1292(b) are
met and will grant Defendants' Motion to certify the
Order denying their Motion for Judgment on the Pleadings for
interlocutory review. Although Defendants have stated that
they are seeking a stay of proceedings pending any appeal, an
appeal under S 1292(b) "shall not stay proceedings in
the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order." Id.
The Court will not grant a stay at this time. Although fact
discovery is largely complete, a stay would disrupt the
current momentum toward resolving remaining discovery
disputes, completing any resulting follow-up fact discovery,
and completing expert discovery. To stop that process now and
restart it after an appeal would be particularly inefficient.
Furthermore, where this case is more than four years old and
certain Plaintiffs are elderly and ill, unnecessary delay in
the district court proceedings would be unjust in that it
could hamper the parties' ability effectively to present
their case at trial. The Court therefore will not stay the
proceedings pending any interlocutory appeal. To the extent
that any such appeal remains unresolved when the case is
ready to proceed to trial, the parties may seek leave to
request a stay at that time.
foregoing reasons, it is hereby ORDERED that:
1. Defendants' Motion to Certify Interlocutory Appeal,
ECF No. 213, is GRANTED.
2. The Court certifies an interlocutory appeal of the
Court's ruling on the Motion for Judgment on the
Pleadings, ECF Nos. 202, 203, specifically, the issue whether
domestic corporate ...