Cohen v. Key Automotive of Florida, LLC ( 2023 )

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT TAMPA DIVISION HADARI COHEN, Plaintiff, v. CASE NO. 8:22-cv-866-SDM-TGW KEY SAFETY SYSTEMS, INC., and KEY AUTOMOTIVE OF FLORIDA, LLC, Defendants. ___________________________________/ ORDER Alleging that a defect in the defendants’ airbag inflator caused her sister’s death in Israel, the plaintiff sues (Doc. 1-1) for negligence and strict products liability. Arguing that the action should continue in Israel, the defendants moved (Doc. 33) to dismiss the action under forum non conveniens. “Because Israel cannot exercise juris- diction over ‘the litigation sought to be transferred’” or “‘the subject matter of the liti- gation,’” a March 17, 2023 order (Doc. 49 at 17) concludes that Israel is not an “available alternative forum” and denies the motion to dismiss. The defendants move (Doc. 51) under 28 U.S.C. § 1292 to amend the March order to certify the or- der for interlocutory appeal. Under 28 U.S.C. § 1292(b), a district court may certify an order for interlocu- tory appeal if “such order involves a controlling question of law as to which there is substantial ground for difference of opinion and [if] an immediate appeal from the order may materially advance the ultimate termination of the litigation.” A substan- tial ground for difference of opinion requires “substantial doubt as to how” a control- ling legal issue “should be decided.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1256 (11th Cir. 2004). In other words, the party requesting interlocutory appeal must demonstrate a “substantial dispute about the correctness of [a legal] premise” on which the order rests. McFarlin, 381 F.3d at 1259; see Davis v. City of Apopka, 2019 WL 9832059, at *3 (M.D. Fla. 2019) (“For there to be a substantial difference [of opinion] the [movant] must show that at least two courts interpreted the legal princi- pal differently.”). Substantial grounds for difference of opinion might exist if the or- der rests on a legal premise (1) that is “difficult and of first impression,” (2) on which district courts within the circuit are divided, or (3) on which other circuit courts are divided. Consumer Fin. Prot. Bureau v. Fredrick J. Hanna & Assoc., P.C., 165 F. Supp. 3d 1330, 1335 (N.D. Ga. 2015). The defendants insist that the order warrants interlocutory appeal because “there is substantial grounds for difference of opinion” about whether an alternative forum remains available and adequate, even if the forum “does not mirror the Amer- ican system of civil litigation.” To support this assertion, the defendants identify no new decisions and instead rely on the same four decisions cited in the motion to dis- miss: Imamura v. General Electric, 957 F.3d 98 (1st Cir. 2020); Veljkovic v. Carlson Ho- tels, Inc., 857 F.3d 754 (7th Cir. 2017); Tang v. Synutra International, 656 F.3d 242 (4th Cir. 2011); and Lueck v. Sundstrand, 236 F.3d 1137 (9th Cir. 2001). Attempting to demonstrate a substantial ground for difference of opinion, the defendants misconstrue the question of law controlling this action. Contrary to the defendant’s assertion, no court debates whether an alternative forum might remain available and adequate despite “not mirror[ing] the American system of civil litiga- tion.” (Doc. 54 at 4) Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), conclusively and affirmatively answers the question — a foreign country need not offer the same litigation system as the United States to constitute an available and adequate alterna- tive forum. Rather than answer the question posed by the defendants, the March or- der answers whether Israel is available despite Israel’s prohibiting the resolution (ju- dicial or otherwise) of “any part of [this] tort action against these or any other de- fendants.” (Doc. 49 at 14) The March order applies the binding precedent in Piper Aircraft, 545 U.S. at 254 n.22, and in Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1290 (11th Cir. 2009), to a specific foreign country, Israel, and concludes that Israel’s no- fault insurance regime prohibits resolution of this action or the subject matter of this action and thus renders Israel “unavailable.” The four decisions cited by the defend- ants — each discussing the “availability” of another foreign country — are not in- compatible with the order.* (Doc. 49 at 14) (“[E]ach decision is inapposite because * And even if, as the defendants insist, the March order conflicts with the cited decisions, Al- dana controls the March order’s result. (Doc. 49 at 14) Conflicting persuasive authority “supports a substantial difference of opinion only if the controlling circuit ‘has not commented on the conflicting issue.’” Weister v. Vantage Point AI, LLC, 2022 WL 7026495, at *2 (M.D. Fla. 2022) (quoting Lord v. Senex Law, P.C., 2022 WL 97046, at *6 (W.D. Va. 2022)). Because the March order rests on binding precedent about a foreign country’s “availability,” “no substantial grounds for a difference of (continued…) in each decision the alternative forum exercises jurisdiction over the subject matter of the action, if not the same action.”) And the order is compatible with other decisions resolving the availability of other foreign countries. See, e.g., Mercier v. Sheraton Int'l, Inc., 935 F.2d 419, 425 n.7 (1st Cir. 1991) (“[I]t is incumbent upon the defendant moving for dismissal on forum non conveniens grounds to establish that there is a meaningful cause of action available in the proposed alternative forum.”). Because the defendants identify no decision establishing that a foreign country remains available despite prohibiting resolution of the pending action or the subject matter of the pending action, no substantial ground for a difference of opinion exists. For this reason and for other reasons in the plaintiffs response (Doc. 54), the motion (Doc. 51) to certify an interlocutory appeal is DENIED. ORDERED in Tampa, Florida, on July 31, 2023. ALTAD.W AA dyelen STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE opinion exists and there is no reason for an immediate appeal.” Kirkland & Ellis v. CMT Corp., 1996 WL 674072, at *4(N.D. Ill. 1996); See McFarlin v. Conseco Servs., LLC 381 F.3d 1251, 1258 (11th Cir. 2004) (noting that “the ‘substantial ground for difference of opinion requirement’ could not be met” if “the resolution of [the legal issue] is so clear” because of binding circuit precedent); In re Miedzian- owski, 735 F.3d 383, 384 (6th Cir. 2013) (“[W]e view the relevant inquiry to be whether there is a cir- cuit split on a question that our own circuit has not answered. Where our circuit has answered the ques- tion, the district court is bound by our published authority. And so are we.”) (emphasis in original). -4-