United States District Court, D. Vermont
ENTRY ORDER DENYING DEFENDANT'S MOTION TO AMEND
THE COURT'S MARCH 30, 2018 ORDER TO CERTIFY FOR
INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS (DOC.
CHRISTINA REISS UNITED STATES DISTRICT COURT.
Retail Pipeline, LLC and Darryl Landvater (collectively,
"Plaintiffs") bring this action alleging breach of
contract, breach of the implied covenant of good faith and
fair dealing, breach of a contract implied in law or fact,
and constructive fraud against Defendant JDA Software Group,
Inc. Pending before the court is Defendant's motion to
amend the March 30, 2018 Order denying Defendant's motion
to dismiss for lack of personal jurisdiction to certify the
Order for interlocutory appeal. (Doc. 54.) Defendant also
seeks a stay of the proceedings pending disposition of that
appeal. On April 9, 2018, Defendant filed the pending motion.
Plaintiffs, who oppose the motion, filed their response on
April 17, 2018. Defendant replied on April 25, 2018, at which
point the court took the matter under advisement.
E. McDonald, Esq., Marc B. Heath, Esq., and Tristram J.
Coffin, Esq. represent Plaintiffs. Karen McAndrew, Esq. and
Justin B. Barnard, Esq. represent Defendant.
March 30, 2018, the court denied Defendant's motion to
dismiss for lack of personal jurisdiction. Based on the
allegations in Plaintiffs' Complaint, as well as the
affidavits, documents, and supplemental memoranda submitted
by the parties, the court found that it lacked general
jurisdiction over Defendant. The court, however, found that
Plaintiffs had met their burden in establishing specific
jurisdiction over Defendant. "Although [the] case
present[ed] a close question, " (Doc. 53 at 20), the
court determined that Plaintiffs had established
Defendant's minimum contacts with Vermont and that
exercising personal jurisdiction over Defendant comported
with "traditional notions of fair play and substantial
justice" consistent with the Due Process Clause.
Int'l Shoe Co. v. State of Wash., Office of
Unemployment Comp. & Placement, 326 U.S. 310, 316
(1945) (internal quotation marks omitted). As a result, the
court denied Defendant's motion to dismiss for lack of
moves to amend the court's March 30, 2018 Order to
certify the jurisdictional determination for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b) so that the
Second Circuit can resolve "critical questions" of
personal jurisdiction relating to contractual relationships
based on "intangible property and services lacking any
essential geographic connection[.]" (Doc. 54 at 1.)
Defendant further asserts that resolution of the personal
jurisdiction issue in its favor "would terminate the
present litigation and provide guidance to courts and
businesses facing similar circumstances[.]" Id.
at 2. Plaintiffs respond that this court's decision was
limited to determining a prima facie showing of personal
jurisdiction, which is not a "pure question of law"
appropriate for interlocutory appeal. (Doc. 55 at 2)
(internal quotation marks omitted).
court of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts of the United
States, . .. except where a direct review may be had in the
Supreme Court." 28 U.S.C. § 1291. "As a
general matter, denials of a motion to dismiss are not
appealable as 'final decisions' of the district
courts under 28 U.S.C. § 1291." Balintulo v.
Daimler AG, 727 F.3d 174, 186 (2d Cir. 2013) (footnote
omitted) (citing Catlin v. United States, 324 U.S.
229, 236 (1945)). However, a district court may certify an
interlocutory appeal pursuant to 28 U.S.C. § 1292(b)
when it is "of the opinion that [the relevant] 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[.]" 28 U.S.C.
§ 1292(b). "When a ruling satisfies these criteria
and 'involves a new legal question or is of special
consequence, ' then the district court 'should not
hesitate to certify an interlocutory appeal.'"
Balintulo, 727 F.3d at 186 (quoting Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009)).
Second Circuit has cautioned, however, that Section 1292(b)
provides a "rare exception to the final judgment rule
that generally prohibits piecemeal appeals" and "is
reserved for those cases where an intermediate appeal may
avoid protracted litigation." Koehler v. Bank of
Bermuda Ltd., 101 F.3d 863, 865-66 (2d Cir. 1996).
"[O]nly exceptional circumstances will justify a
departure from the basic policy of postponing appellate
review until after the entry of a final judgment."
Klinghoffer v. S. N.C. Achille Lauro Ed Altri-Gestione
Motonave Achille Lauro in Amministrazione Straordinaria,
921 F.2d 21, 25 (2d Cir. 1990) (internal quotation marks and
alteration omitted); see also Westwood Pharm., Inc. v.
Nat'l Fuel Gas Dist. Corp., 964 F.2d 85, 89 (2d Cir.
1992) (stating that district courts should "exercise
great care in making a [Section] 1292(b)
that the court's Order presents substantial grounds for
differences of opinion, Defendant must still demonstrate the
existence of a controlling question of law that, if
certified, may materially advance the ultimate termination of
the litigation. Because the court's Order resolved
"a potentially dispositive question of jurisdiction,
" Defendant argues that the first criterion is
satisfied. (Doc. 54 at 3.) Defendant further contends that a
ruling on personal jurisdiction in its favor will result in
the termination of the case. Plaintiffs respond that the
court's decision did not present a "pure
question" of law, but rather involves "a question
of law which turns on a thorough examination of the facts[,
]" and, without an evidentiary hearing, interlocutory
appeal would be premature. (Doc. 55 at 4) (internal quotation
the resolution of an issue need not necessarily terminate an
action in order to be 'controlling, ' ... it is clear
that a question of law is 'controlling' if reversal
of the district court's order would terminate the
action." Klinghoffer, 921 F.2d at 24 (citations
omitted). A controlling question of law "must refer to a
'pure' question of law that the reviewing court could
decide quickly and cleanly without having to study the
record." Youngers v. Virtus Inv. Partners Inc.,
228 F.Supp.3d 295, 298 (S.D.N.Y. 2017) (quoting Capitol
Records, LLC v. Vimeo, LLC, 972 F.Supp.2d 537, 551
(S.D.N.Y. 2013)); see also Cal. Pub. Employees' Ret.
Sys. v. WorldCom, Inc., 368 F.3d 86, 96 (2d Cir. 2004)
("By its plain terms, Section 1292(b) may only be used
to challenge legal determinations.").
the Second Circuit has "granted certification when the
order involved issues of in personam . . . jurisdiction[,
]" Klinghoffer, 921 F.2d at 24, in Koehler
v. Bank of Bermuda Ltd., the Second Circuit has observed
that Section 1292(b)'s "intended purpose" would
not be served if it ruled on "an ephemeral question of
law that may disappear in the light of a complete and final
record." Koehler, 101 F.3d at 864.
Koehler thus held that review of "the district
court's initial determination of a prima facie
showing of in personam jurisdiction [ ]" was
"prematurely before [it]." Id. at 866. In
so ruling, the Koehler court noted that Section
1292(b) "was not meant to substitute an appellate
court's judgment for that of a trial court" and
concluded that in "the absence of discovery and a
district court hearing to determine the jurisdictional
question by a preponderance of the evidence[, ]"
certification of the personal jurisdiction question "at
this initial stage of the proceeding" was
"improvidently granted." Id. at 866-67.
the fact that the parties in this case conducted
jurisdictional discovery, the court has not held an
evidentiary hearing. Indeed, during a January 19, 2018 status
conference, Defendant objected to the suggestion that an
evidentiary hearing was necessary to resolve its motion to
dismiss. The court has thus not determined whether Plaintiffs
satisfied their "ultimate burden" of establishing
personal jurisdiction over Defendant "by a preponderance
of the evidence[.]" Id. at 865; see also
Persh v. Petersen, 2016 WL 5793749, at *3 (S.D.N.Y. Oct.
4, 2016) (finding that the "[certification of personal
jurisdiction questions prior to an evidentiary hearing"
would be improper). When the plaintiff "has engaged in
jurisdictional discovery, but no evidentiary hearing [is
held], the plaintiff s prima facie showing,
necessary to defeat a jurisdiction testing motion must
include an averment of facts that, if credited would suffice
to establish jurisdiction over the defendant." In re
Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206
(2d Cir. 2003). To the extent Defendant challenges the
court's conclusion that Plaintiffs met this burden,
"the question of whether the pleadings, affidavits, and
supporting materials support a finding of [personal]
jurisdiction is not a question of law at all."
McGraw-Hill Glob. Educ. Holdings, LLC v. Mathrani,
2018 WL 1274828, at *4 (S.D.N.Y. Mar. 5, 2018) (internal
quotation marks omitted); see also Hecklerco, LLC v.
YuuZoo Corp., 258 F.Supp.3d 350, 357 (S.D.N.Y. 2017)
(denying a motion to certify interlocutory appeal, even
though the existence of personal jurisdiction was "a
close question[, ]" because the defendants "simply
disagree that the factual record supports the [c]ourt's
exercise of jurisdiction over them.") (internal
quotation marks omitted).
court's Order did not involve "a new legal
question" and is not "of special
consequence" beyond the parties' interest in
resolving a jurisdictional issue. Mohawk, 558 U.S.
at 111. Rather, the court applied well-established standards
and concluded, based upon the facts presented, that
Plaintiffs met their initial burden. See Shovah v.
Mercure, 2013 WL 5934310, at *2 (D. Vt. Nov. 5, 2013)
(finding interlocutory appeal unwarranted where the court
concluded that the facts supported the exercise of personal
jurisdiction and the case "did not involve a novel or
unsettled area of law"). Because the parties could not
agree on a stipulated statement of facts, the court
considered each of their submissions. As a result, whether
the factual record established personal jurisdiction over
Defendant presented "a question of law which turn[ed] on
a thorough examination of the facts defining the relationship
between [the parties.]" Koehler, 101 F.3d at
it is not clear whether certification of the court's
Order will advance the ultimate termination of the
litigation. See Primavera Familienstifung v. Askin,
139 F.Supp.2d 567, 570 (S.D.N.Y. 2001) ("Although
technically the question of whether there is a controlling
issue of law is distinct from the question of whether
certification would materially advance the ultimate
termination of the litigation, in practice the two questions
are closely connected.") (citing The Duplan Corp. v.
Slaner, 591 F.2d 139, 148 n.11 (2d Cir. 1978)). If the
Second Circuit reverses this court's Order, it may remand
for an evidentiary hearing. If the Second Circuit affirms,
this court "will still need to determine whether
[Plaintiffs] can meet [their] ultimate burden of showing
personal jurisdiction over [Defendant] by a preponderance of
the evidence at a later stage of the trial proceedings."
Koehler, 101 F.3d at 866.
Defendant has not demonstrated that the court's Order
involves a controlling question of law that would materially
advance the termination of the ...