Filed: Apr. 27, 2012
Latest Update: Apr. 27, 2012
Summary: MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION TO AMEND MEMORANDUM OPINION AND ORDER REGARDING GENERIC DEFENDANTS' MOTION TO DISMISS IN ORDER TO CERTIFY RULING FOR INTERLOCUTORY APPEAL DANNY C. REEVES, District Judge. This matter is pending for consideration of the plaintiffs' motion to amend the Court's Memorandum Opinion and Order entered March 5, 2012 [MDL Record No. 1305] in the above 28 cases 1 for the purpose of certifying its ruling concerning the dismissal of claims asserte
Summary: MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION TO AMEND MEMORANDUM OPINION AND ORDER REGARDING GENERIC DEFENDANTS' MOTION TO DISMISS IN ORDER TO CERTIFY RULING FOR INTERLOCUTORY APPEAL DANNY C. REEVES, District Judge. This matter is pending for consideration of the plaintiffs' motion to amend the Court's Memorandum Opinion and Order entered March 5, 2012 [MDL Record No. 1305] in the above 28 cases 1 for the purpose of certifying its ruling concerning the dismissal of claims asserted..
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MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION TO AMEND MEMORANDUM OPINION AND ORDER REGARDING GENERIC DEFENDANTS' MOTION TO DISMISS IN ORDER TO CERTIFY RULING FOR INTERLOCUTORY APPEAL
DANNY C. REEVES, District Judge.
This matter is pending for consideration of the plaintiffs' motion to amend the Court's Memorandum Opinion and Order entered March 5, 2012 [MDL Record No. 1305] in the above 28 cases1 for the purpose of certifying its ruling concerning the dismissal of claims asserted against the generic manufacturers and/or distributors of propoxyphene products for the purpose of allowing the plaintiffs to seek review of this interlocutory ruling by the United States Court of Appeals for the Sixth Circuit. [MDL Record No. 1597] Having reviewed this motion, the Court concludes that the relief sought should be denied.
In limited circumstances, a party aggrieved by a federal court's interlocutory decision may seek appellate review. One statutory avenue for seeking such relief of purely legal questions provides that,
[w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b). Certification under § 1292(b) is a two-step process which involves close analysis by the district and appellate court. Further, it is reserved for truly exceptional circumstances. Cardwell v. Chesapeake & Ohio R. R. Co., 504 F.2d 444 (6th Cir. 1974); Kraus v. Bd. of Cnty. Road Comm'rs for Kent Cnty., 364 F.2d 919 (6th Cir. 1966).
In the present case, the plaintiffs do not seek to have the Court certify a discrete legal issue but, instead, its entire March 5, 2012, Memorandum Opinion and Order regarding the generic defendants' potential liability in following the Supreme Court's decision in Pilva, Inc. v. Mensing, 131 S.Ct. 2567 (2011).2 They contend that the subject opinion clearly involves controlling questions of law because it "resulted in the immediate dismissal of every claim asserted against a generic manufacturer of propoxyphene that was the subject of the motion to dismiss" and that it would likely be extended to similar claims asserted against generic manufacturers.3 Further, they argue that there is substantial grounds for a difference of opinion regarding the correctness of the Court's ruling.
While the undersigned agrees with the plaintiffs' contention that the March 5, 2012, Memorandum Opinion and Order involves a "controlling question" as that term is defined under 28 U.S.C. § 1292(b)), the Court cannot conclude in good faith that there is a substantial grounds for a difference of opinion regarding this ruling after Mensing. Likewise, the Court disagrees with the plaintiffs' assertion that certification would materially advance termination of this multi-district litigation. Final judgments have been entered in several cases and the plaintiffs in a number of those cases have filed direct appeals with the Sixth Circuit. Nothing prevents the plaintiffs in those cases from seeking to expedite and/or to consolidate their appeals following entry of final judgments. While there would be some degree of cost savings associated with a certification order if combined with an order staying this litigation pending a final determination by the Sixth Circuit, the same argument can be advanced in most cases with any degree of complexity. This Court does not find such a procedure to be a preferable or acceptable option in light of the need to move this litigation forward as expeditiously as is practical. Accordingly, it is hereby
ORDERED that the plaintiffs' motion to amend this Court's Memorandum Opinion and Order Regarding Generic Defendants' Motions to Dismiss in order to certify its ruling for interlocutory appeal [Record No. 1597] is DENIED.
