United States District Court, D. New Mexico
D. MARIA SCHMIDT, as the Personal Representative of the Wrongful Death Estate of RUBEN GUERRA QUINONES, Deceased, Plaintiff,
NAVISTAR, INC., Defendant.
MEMORANDUM OPINION AND ORDER
matter comes before the Court on Defendant Navistar,
Inc.'s (Navistar) Motion to Certify an Interlocutory
Appeal (Motion), filed March 14, 2019. (Doc. 26). Navistar
seeks certification of an interlocutory appeal on this
Court's March 4, 2019, Memorandum Opinion and Order
determining that Navistar consented to general personal
jurisdiction in New Mexico by registering to transact
business in New Mexico, transacting business in New Mexico,
and appointing an agent for service of process in New Mexico.
(Doc. 24). Plaintiff D. Maria Schmidt, as the Personal
Representative of the Wrongful Death Estate of Ruben Guerra
Quinones, Deceased (Schmidt), filed her response on April 11,
2019, opposing certification of an interlocutory appeal.
(Doc. 34). Navistar filed its reply on April 25, 2019. (Doc.
35). Having considered the briefing, the record, and the
applicable law, the Court grants Navistar's Motion to
Certify an Interlocutory Appeal (Doc. 26), certifies to the
Tenth Circuit Court of Appeals this Court's March 4,
2019, Memorandum Opinion and Order (Doc. 24) for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b),
and stays this case pending the Tenth Circuit's decision.
Court addressed the background of this case and the
parties' respective arguments in its March 4, 2019,
Memorandum Opinion and Order, and finds it not necessary to
reiterate the same herein. (Doc. 24).
previous Memorandum Opinion and Order, the Court held that
issue preclusion does not apply to this case and that New
Mexico's consent-by-registration statute remains valid
and constitutionally sound pursuant to Pennsylvania Fire
Insurance Co. of Philadelphia v. Gold Issue Mining &
Milling Co., 243 U.S. 93, 96 (1917). (Id.) at
13. Because the Court concluded that Navistar consented to
general jurisdiction in New Mexico, it did not consider or
address Schmidt's argument related to specific
jurisdiction over Navistar. (Id.)
now moves the Court to certify the previous Memorandum
Opinion and Order for interlocutory appeal to the Tenth
Circuit, specifically on the question of whether general
personal jurisdiction can be predicated on New Mexico's
consent-by-registration statute, NMSA 1978, § 53-17-11.
(Doc. 26). Navistar does not contest the Court's ruling
on issue preclusion. Schmidt opposes certification and
further contends that this Court could find specific personal
jurisdiction over Navistar. (Doc. 32).
the Court did not address specific personal jurisdiction in
its original Memorandum Opinion and Order, and finds that it
lacks sufficient information to make such a determination,
the Court will not now address that argument.
1292(b) of Title 28 of the United States Code provides:
When 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.
(emphasis in original). Though not explicitly enumerated in
the United States Code or in the Federal Rules of Civil or
Appellate Procedure, courts generally analyze § 1292(b)
motions to certify interlocutory appeal under a three-part
test: 1) whether the issue involves a controlling issue of
law; 2) whether there is substantial ground for difference of
opinion on that issue of law; and 3) whether an immediate
appeal from the order will materially advance the ultimate
termination of the litigation. See, e.g.,
Caraballo-Seda v. Municipality of Hormigueros, 395
F.3d 7, 9 (1st Cir. 2005); In re Cement Antitrust
Litigation (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir.
1981); Cardona v. General Motors Corp., 939 F.Supp.
351, 353 (D.N.J. 1996).
parties agree that § 1292(b), and no other provision,
applies to this Motion. The parties further agree that the
question at issue, whether New Mexico's
consent-by-registration statute passes constitutional muster
in light of the Supreme Court's decision in Daimler
AG v. Bauman, 571 U.S. 117 (2014), is a controlling
question of law.
addition to this general jurisdiction issue being a
controlling question of law, the Court is of the opinion that
substantial ground exists for a difference of opinion when
considering this question.
There is a substantial ground for difference of opinion which
supports a certificate for an interlocutory appeal if a trial
court rules in a manner which appears contrary to the rulings
of all courts of appeals which have reached the issue, if the
circuits are in dispute on the questions and the court of
appeals has not spoken on the point, if complicated questions
arise under foreign law, or if novel and difficult questions
of first impression are presented.
2 Fed. Proc., L.Ed. § 3:218 (footnotes omitted)
(collecting cases). However, an attorney's contention
that one precedent rather than another should apply does not
merit interlocutory appeal. See Singh v. Daimler-Benz,
AG, 800 F.Supp. 260, 263 (E.D. Pa. 1992),
aff'd 9 F.3d 303 (3d Cir. 1993).
discussed in the previous Memorandum Opinion and Order, the
Tenth Circuit has not addressed consent-by-registration
statutes since Daimler was decided. Multiple other
circuits, however, have addressed this question and have
reached differing conclusions. See (Doc. 26) at 4,
nn. 1-3 (collecting cases). And while the Supreme Court
squarely addressed the issue in Pennsylvania Fire,
it has not directly considered consent-by-registration
statutes since 1917.
interlocutory review is appropriate “in extraordinary
cases where decision might avoid protracted and expensive
litigation.” Robbins Co. v. Lawrence Mfg. Co.,
482 F.2d 426, 429-30 (9th Cir. 1973). An immediate appeal
advances termination of the case if it “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.” Coates v.