Opinion
00 Civ. 3666 (SAS)
January 30, 2001
Barry Levy, Esq., Shapiro, Beilly, Rosenberg, Aronowitz, Levy Fox, LLP., New York, New York, for plaintiff.
Anthony Tagliagambe, Esq., London Fischer, LLP., New York, New York, for defendant.
MEMORANDUM OPINION AND ORDER
BIC USA, Inc. ("BIC") moved to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiffs' claims were expressly and impliedly preempted by the Consumer Product Safety Act ("CPSA"), 15 U.S.C. § 2051-2084, and the regulations promulgated by the Consumer Product Safety Commission ("CPSC"). On December 19, 2000, BIC's motion was denied. See Colon Colon ex rel. Molina v. BIC USA. Inc., No. 00 Civ. 3666, 2000 WL 1862811 (S.D.N.Y. Dec. 19, 2000) ("Colon I"). BIC now seeks certification for interlocutory review of that order under 28 U.S.C. § 1292 (b). For the reasons stated below, BIG's request for certification is denied.
I. BACKGROUND
The facts of this dispute are set forth in detail in Colon I, familiarity with which is assumed.
II. DISCUSSION
A. The Standard for § 1292(b) Certification
Interlocutory orders are not usually appealable. However, a court may certify an interlocutory order for appeal if the order "[1] 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. § 1292 (b). "In considering a request for certification, the district court must carefully assess whether each of the three conditions for certification is met." S.E.C. v. Credit Bancorp. Ltd., 103 F. Supp.2d 223, 226 (S.D.N.Y. 2000). The statute must be strictly construed and "only `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, 921 F.2d 21, 25 (2d Cir. 1990) (quoting Coopers Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). The Second Circuit has "urge[d] the district courts to exercise great care in making a § 1292(b) certification."Westwood Pharm., Inc. v. National Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992). The decision as to whether certification should be granted "rests within the discretion of the district court." In re Chase Manhattan Corp., No. 90 Civ. 6092, 1991 WL 224311, at *1 (S.D.N.Y. Oct. 21, 1991); see also Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 866 (2d Cir. 1996) ("[Section] 1292(b) was not meant to substitute an appellate court's judgment for that of the trial court.")
Whether the CPSA and the regulations promulgated by the CPSC preempt plaintiffs' common law causes of action is clearly a "controlling question of law." Thus, the only issues to. be resolved are: 1) whether there is a substantial ground for difference of opinion as to the preemptive effect of the CPSA on plaintiffs' common law claims; and 2) whether an immediate appeal would materially advance the ultimate termination of this action.
1. Substantial Ground for Difference of Opinion
In Colon I, 2000 WL 1862811, at *1, this Court held that the CPSA and the regulations promulgated by the CPSC did not expressly or impliedly preempt plaintiffs' state common law claims. However, citing decisions from other circuits, BIG contends that there is a substantial difference of opinion as to the preemptive effect of the CPSA and the regulations promulgated by the CPSC on common law claims. See, e.g., Carlson v. BIC Corp., 89 F.3d 832 (6th Cir. 1996) (Unpublished table decision); Moe v. MTD Prods., Inc., 73 F.3d 179 (8th Cir. 1995); Frazier v. Heckinpers MTD Prods., Inc., 96 F. Supp.2d 486 (E.D. Pa. 2000); Ball v. BIC Corp., No. 4: 97-CV-02467 (D. Mo. Feb. 8, 2000); Minersville v. BIC Corp., Nos. Civ. A 95-4548 and 95-5538, 1999 WL 551897, at *2 (E.D. Pa. June 23, 1999); Cortez v. MTD Prods., Inc., 927 F. Supp. 386 (N.D. Ca. 1996). The Second Circuit has yet to address whether the CPSA and the regulations promulgated by the CPSG preempt state common law claims.
Disagreement among courts outside the Second Circuit does not establish a substantial ground for difference of opinion. See S.E.C., 103 F. Supp. 2d at 227 ("The fact that there is some level of disagreement among the courts does not mean, however, that the standards of 1292(b) are necessarily satisfied."); see also Shah v. Wilco Sys., No. 99 Civ. 12054, 2000 WL 1876913, at *2 (S.D.N.Y. Dec. 22, 2000) (denying certification, in part, because the cases cited by the defendant were outside the Second Circuit). Moreover, the mere presence of a disputed issue that is a question of first impression in this Circuit is insufficient to demonstrate a substantial ground for a difference of opinion. See Flor v. BOT Fin. Corp., 79 F.3d 281, 284 (2d Cir. 1996). In order to determine whether a substantial ground for difference of opinion truly exists, a district court must analyze the strength of the arguments in opposition to the challenged ruling. See id. (citations omitted)
The cases cited by BIC in support of its request for certification fail to take into account the Supreme Court's recent decision in Geier v. American Honda Motor Corp., 120 S.Ct 1913 (2000). In Geier, the Supreme Court addressed the dilemma posed by the inclusion of an express preemption provision and a saving clause in the same statute. The Court held that the presence of a saving clause prohibits a broad reading of the preemption provision to include common law claims. See id. at 1918-20. In light of this decision, there can be no dispute that plaintiffs' claims are not expressly preempted by the CPSA. See Leipart v. Guardian Indus., Inc., 234 F.3d 1063, 1069-70 (9th Cir. 2000) (holding that plaintiff's common law claims were not expressly preempted by the CPSA); see also Choate v. Champion Home Builders Co., 222 F.3d 788, 793 (10th Cir. 2000) (relying on the language of Geier to hold that the saving clause contained in the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. § 5401-5426, prohibited express preemption of plaintiffs' common law claims); Lady v. Neal Glasser Marine, Inc., 228 F.3d 598, 610-11 (5th Cir. 2000) (relying on the language of Geier to hold that the saving clause contained in the Federal Boat Safety Act, 46 U.S.C. § 4301-4311, prohibited express preemption of plaintiff's common law claims)
The cases cited by BIC, except for Frazier, were decided before the Supreme Court's decision in Geier. Frazier was decided one day afterGeier, but makes no reference to that decision.
A complete analysis of the Geier decision can be found in Colon I, 2000 WL 1862811, at *6-7.
In addition, as fully explained in Colon I, plaintiffs' claims neither conflict with the regulations promulgated by the CPSG nor would enforcement of plaintiffs' claims stand as an obstacle to the objectives of Congress. See 2000 WL 1862811, at *7-10; see also Leipart, 234 F.3d at 1070 (holding that state common law actions do not conflict with the "overarching goal of the CPSA to create a system in which federal standards and state common law requirements both have roles to play"). Defendants argument to the contrary is unavailing.
2. Advancing the Ultimate Termination of this Action
Even if the Court were to conclude that a substantial ground for difference of opinion does exist, resolution of the preemption issue would not result in the ultimate termination of this action. Section 1292(b) certification is inappropriate where it is unclear whether disposition of the certified issue would advance the ultimate termination of the case. See Westwood, 964 F.2d at 88; see also Lerner v. Millenco, L.P., 23 F. Supp.2d 345, 347-48 (S.D.N.Y. 1998). As I explained in Colon I, the regulations promulgated by the CPSC do not address what warnings, if any, must be applied to the lighters, or what colors may be used in connection with the manufacture of such lighters. See 2000 WL 1862811, at *7-9 Accordingly, even if the Circuit were to find that the CPSA and regulations promulgated by the CPSC preempt conflicting common law claims, such a ruling would not effect plaintiffs' claims for failure to warn and design defect based upon color.
III. CONCLUSION
For the reasons stated above, BIC's request for certification for interlocutory review pursuant to § 1292(b) is denied.