IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE: ASBESTOS LITIGATION: )
Limited to: )
MARY ANNE HUDSON )
Plaintiff, )
Respondent, )
v. ) C.A. No. N14C-03-247 ASB
)
INTERNATIONAL PAPER, )
COMPANY, et al. )
Defendant, )
Petitioner. )
Submitted: September 14, 2015
Decided: September 24, 2015
ORDER REFUSING TO CERTIFY AN INTERLOCUTORY APPEAL
This 24th day of September, 2015, upon consideration of Defendant
International Paper Company’s (“International Paper”) application under Rule 42
of the Supreme Court for an order certifying an appeal from the interlocutory order
of this Court, originally dated August 25, 2015, 1 corrected August 31, 2015, 2 and
captioned In re: Asbestos Litigation (Hudson), it appears to the Court that:
1
2015 WL 5016493 (Del. Super. Ct. Aug. 25, 2015).
2
In re: Asbestos Litigation (Hudson), Del. Super. Ct., C.A. No. N14C-03-247, Wallace, J.
(Aug. 31, 2015) (D. I. 276) (not yet posted by Westlaw).
(1) This is an asbestos case originally brought by Plaintiff Mary Hudson
in 2014.3 On May 26, 2015, International Paper moved to dismiss all claims
against it for lack of personal jurisdiction citing the United States Supreme Court
decision Daimler AG v. Bauman.4 Plaintiff filed a timely response in opposition to
International Paper’s motion.5 Following oral argument, this Court denied
International Paper’s motion to dismiss on July 9, 2015.6 International Paper then
filed a Motion for Reargument of the Court’s denial on July 16, 2015,7 which
Plaintiff also opposed. 8 The Court denied the motion for reargument on August
25, 2015. 9
(2) International Paper’s application for certification is not altogether
clear as to what is sought. Is International Paper looking for certification of a
3
See Compl. (D.I. 1).
4
Def.’s Mot. to Dismiss at 1 (D.I. 174).
5
Pl.’s Opp. to Def.’s Mot. to Dismiss (D.I. 213).
6
See Hr’g Tr., July 9, 2015 (D.I. 287); Order on Def.’s Mot. to Dismiss (ORDER) (D.I.
246).
7
Def.’s Mot. Reargument (D.I. 253).
8
Pl.’s Opp. to Def.’s Mot. Reargument (D.I. 254).
9
Order on Def.’s Mot. Reargument (ORDER) (D.I. 273); Corrected Order on Def.’s Mot.
Reargument (ORDER) (D.I. 276).
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question of law under Rule 41, 10 or certification of an interlocutory appeal under
Rule 42? 11 International Paper first asks the Court for “an order certifying the
following question of law for Supreme Court review:
Whether, by registering to do business in Delaware
pursuant to Del. Code Ann. Tit. 8, §§ 376 and 371, IP
consented to general jurisdiction in Delaware for any and
all actions, including actions with no relationship to
Delaware, despite the holding in Daimler AG v. Bauman,
134 S.Ct. 746 (2014) and its progeny, which restricted
the imposition of general jurisdiction to only those States
where a defendant was ‘essentially at home?’” 12
But International Paper then goes on to cite Rule 42, engage that rule’s analytical
framework, and ask for certification of an interlocutory appeal under Rule 42.13 As
the bulk of its request invokes it, the Court will consider International Paper’s
application under Rule 42.
(3) Under Rule 42, the Court must: (1) determine that the order to be
certified for appeal “decides a substantial issue of material importance that merits
10
Del. Supr. Ct. R. 41 (Certification of Questions of Law) (“Other Delaware courts may on
motion . . . certify to th[e Delaware Supreme] Court for decision a question or questions of law
arising in any case before it . . .”).
11
Del. Supr. Ct. R. 42 (Interlocutory Appeals).
12
Def.’s Appl. For Certification of Interlocutory Appeal at 1; id at 12 (International Paper
again refers to the “question presented” for certification).
13
Id. at 5-13; id. at 1 (“Pursuant to Delaware Supreme Court Rule 42 (“Rule 42”),
International Paper (“IP”) . . . files their Application for Certification of Interlocutory Appeal . .
.); id. at 5 (“Certification is proper because the issue at bar meets the criteria established by Rule
42.”).
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appellate review before a final judgment;”14 (2) decide whether to certify via
consideration of the eight factors listed in Rule 42(b)(iii); 15 (3) consider the Court’s
own assessment of the most efficient and just schedule to resolve the case; 16 and
then (4) identify whether and why the likely benefits of interlocutory review
14
Del. Supr. Ct. R. 42(b)(i).
15
(A) The interlocutory order involves a question of law resolved for
the first time in this State;
(B) The decisions of the trial courts are conflicting upon the
question of law;
(C) The question of law relates to the constitutionality,
construction, or application of a statute of this State, which has
not been, but should be, settled by this Court in advance of an
appeal from a final order;
(D) The interlocutory order has sustained the controverted
jurisdiction of the trial court;
(E) The interlocutory order has reversed or set aside a prior
decision of the trial court, a jury, or an administrative agency
from which an appeal was taken to the trial court which had
decided a significant issue and a review of the interlocutory
order may terminate the litigation, substantially reduce further
litigation, or otherwise serve considerations of justice;
(F) The interlocutory order has vacated or opened a judgment of
the trial court;
(G) Review of the interlocutory order may terminate the litigation;
or
(H) Review of the interlocutory order may serve considerations of
justice.
Del. Supr. Ct. R. 42(b)(iii).
16
Del. Supr. Ct. R. 42(b)(iii).
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outweigh the probable costs, such that interlocutory review is in the interests of
justice.17
(4) The first step in engaging a Rule 42 analysis requires that the Court
identify the order for which certification and appellate review is sought. So the
Court must now determine exactly which of its interlocutory orders International
Paper asks this Court to certify for appeal—its order on the motion to dismiss, its
order on the motion for reargument, or both.
(5) While this may seem a simple task, the applicant here has not made it
so. International Paper had the opportunity to request certification of the denials of
both its motion to dismiss and its motion for reargument. Finality of the July 9,
2015 order denying dismissal did not attach until disposition of its timely
reargument request. International Paper could have then sought certification of the
underlying denial of the motion to dismiss, the denial of the motion for
reargument, or both.18 But International Paper has not sought certification of
17
Id. Those “probable costs” are informed, in part, by Rule 42(b)(ii), i.e., interlocutory
appeals “disrupt the normal procession of litigation, cause delay, and can threaten to exhaust
scarce party and judicial resources.” Del. Supr. Ct. R. 42(b)(ii).
18
See Hessler, Inc. v. Farrell, 260 A.2d 701 (Del. 1969) (“Finality does not attach to any
judgment while a Rule 59 motion addressed to it is pending before the Trial Court.”); Preform
Bldg. Components, Inc. v. Edwards, 280 A.2d 697, 698 (Del. 1971) (holding that timely motion
for reargument tolls appeal period, but untimely motion does not); Stepak v. Tracinda Corp.,
1989 WL 149552, at *1 (Del. Nov. 9, 1989) (internal citations omitted) (timely motion for
reargument also tolls the time limit within which to seek certification for interlocutory appeal);
Hazout v. Tsang Mun Ting, Del. Supr., No. 353, 2015, Seitz, J. (Aug. 6, 2015) (accepting
interlocutory appeal from two of this Court’s orders – one denying motion to dismiss and the
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both—it has asked only for certification of the order denying reargument.19
International Paper did not apply for certification of this Court’s denial of its
motion to dismiss; and any such application is likely now time-barred.20 Because
International Paper expressly asks for certification of this Court’s denial of its
motion for reargument (both here and in its notice of appeal),21 the Court might
rightly consider certification only of its August 25th order (as corrected) denying
International Paper’s motion for reargument.
second an order denying reargument thereon); id. at 4 (Stepak’s tolling rule remains unchanged
under recently amended Rule 42).
19
See Def.’s Appl. for Certification of Interlocutory Appeal at 1 (asking for “Certification
of Interlocutory Appeal of this Court’s August 25 (and subsequently corrected August 31), 2015
Order”); Def.’s Proposed Order Granting Leave to Appeal from Interlocutory Order (proposing
“certifying an appeal from the interlocutory order of this Court, dated August 25, 2015 (and
subsequently corrected August 31, 2015) and that it be “’SO ORDERED that the Court’s order
of August 25, 2015, is hereby certified to the Supreme Court . . .’”); Ex. 7 to Appl. for
Certification of Interlocutory Appeal (August 25 Order). See also Not. of Appeal, International
Paper v. Hudson, No. 508, 2015 (Del. filed Sept. 17, 2015) (“The interlocutory order was
entered on August 25, 2015 and subsequently corrected on August 31, 2015.”); Renot. of
Appeal, International Paper v. Hudson, No. 508, 2015 (Del. filed Sept. 18, 2015) (same). But
see Def.’s Appl. for Certification of Interlocutory Appeal at 12 (“By denying IP’s motion to
dismiss, the trial court’s order (the subject of the interlocutory appeal) sustained the controverted
jurisdiction of the trial court.”).
20
The Court’s order denying International Paper’s motion to dismiss was entered on July 9,
2015, but the order denying its motion for reargument was entered on August 25, 2015.
Accounting for the tolling during the pendency of the motion for reargument, International Paper
had until September 4, 2015 to file for certification of appeal of the order denying the motion to
dismiss. See n.18 supra; Del. Supr. Ct. R. 42 (c)(i) (an application for certification of an
interlocutory appeal usually must be served and filed in the trial court “within 10 days of the
entry of the order from which the appeal is sought”).
21
See Def.’s Not. to Appeal, International Paper v. Hudson, No. 508, 2015 (Del. filed Sept.
17, 2015).
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(6) When doing so, the Court must first determine if that which
International Paper seeks certification of “decides a substantial issue of material
importance that merits appellate review before a final judgment.”22 It does not.
International Paper, by asking the Court to certify an appeal only of its order on
reargument, seeks Supreme Court review limited to this Court’s basis for denying
that motion. International Paper’s application does not extend to the substance and
merits of its motion to dismiss, i.e., whether or not it is subject to personal
jurisdiction of the Court in this case. Instead, International Paper would obtain
review of whether it met its heavy burden under Superior Court Rule of Civil
Procedure 59 to demonstrate that this Court was required to correct an error of law
or prevent manifest injustice deriving from its initial judgment.23 That is not a
substantial issue worthy of certification.24 Even if it was, the application does not
otherwise meet the standards for certification. As to the discrete issue of
immediate review of the Court’s reargument decision: not one of the Rule
42(b)(iii) factors is met; it would be not promote the most efficient and just
22
Del. Supr. Ct. R. 42(b)(i).
23
See Hessler, 260 A.2d at 702 (“manifest purpose of all Rule 59 motions is to afford the
Trial Court an opportunity to correct errors”); Reid v. Hindt, 2008 WL 2943373, at *1 (Del.
Super. Ct. July 31, 2008); Kostyshyn v. Comm’rs of Bellefonte, 2007 WL 1241875, at *1 (Del.
Super. Ct. Apr. 27, 2007).
24
See, e.g., Rabspan, Inc. v. Ryland Grp., Inc., 2004 WL 2743400, at *1 (Del. Nov. 8,
2004) (refusing interlocutory appeal from orders on motions for reargument).
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schedule to resolve this case; and the benefits of granting interlocutory review of
such a limited question do not outweigh the probable costs.
(7) International Paper should have sought certification of the Court’s
July 9th order denying its motion to dismiss if it wanted the Court to consider the
merits of its personal jurisdiction argument. It did not. And, because an applicant
seeking review of an interlocutory order must strictly comply with the
requirements of Rule 42, 25 the courts may be without jurisdiction to consider
certification of its denial of its motion to dismiss.26
(8) But even if the Court were to consider certification of its July 9th
denial of the motion to dismiss,27 the Court would be required to apply the
25
See, e.g., Biggins v. Danberg, 2009 WL 1913611, at *1 (Del. July 6, 2009) (“This Court
requires strict compliance with Rule 42 whenever a party seeks review of an interlocutory ruling
in a civil case.”); Liberty Mut. Ins. Co. v. Silva-Garcia, 2012 WL 4165653, at *3 (Del. Super. Ct.
Sept. 5, 2012) (“[B]efore the Supreme Court will accept an interlocutory appeal, the party
seeking the appeal must adhere to the strict requirements set forth in the rule.”).
26
See Del. Supr. Ct. R. 42(a) (providing the jurisdiction of Supreme Court to hear and
determine appeals in civil cases from trial courts’ interlocutory orders “shall be exercised in
accordance with” rule’s provisions in certifying and accepting interlocutory appeals); id. at (c)
(application must identify “the order from which the appeal is sought” and setting forth time
limits in seeking certification by this Court); and id. at (d)(iv)(B) (requiring the filing of the
“Order on Review. The interlocutory order from which the appeal is sought to be taken together
with any opinion of the trial Court with respect thereto” with the notice of appeal). See, e.g.,
Samuel v. State, 2010 WL 3245109, at *1 (Del. Aug. 17, 2010) (untimely appeal of underlying
motion left supreme court only with jurisdiction to review disposition of Rule 59(e) reargument
motion); Parker v. State, 2001 WL 213389, at *1 (Del. Feb. 26, 2001) (supreme court cannot
consider merits of substantive decision if not timely appealed; can then only consider appeal of
reargument motion).
27
International Paper does refer to it once as the actual subject of its application. See Def.’s
Appl. for Certification of Interlocutory Appeal at 12.
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rigourous standard of Rule 42.28 The “substantial issue of material importance”
prong of Rule 42 requires that the matter decided goes to the merits of the case.29
An exercise of personal jurisdiction does not affect the merits of Mrs. Hudson’s
personal injury asbestos claims against International Paper. 30 And while
International Paper belatedly found some instances where personal jurisdiction
may have been addressed in Rule 42 proceedings, 31 the Delaware Supreme Court
has “repeatedly h[eld] that a denial of a motion to dismiss for lack of personal
jurisdiction does not . . . determine a substantial issue.” 32
(9) The Court does agree that its decision sustained controverted
jurisdiction. But other the Rule 42(b)(iii) factors are not met by this Court’s
decision that applied settled Delaware law and agreed with numerous Delaware
28
TowerHill Wealth Mgmt., LLC v. Bander Family P’ship, L.P., 2008 WL 4615865, at *2
(Del. Ch. Oct. 9, 2008) (citing Donald J. Wolfe, Jr. & Michael A. Pittenger, CORPORATE AND
COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY § 14.04 (2008) (noting that
Rule 42 contains “rigorous criteria” and the Supreme Court requires “strict compliance with Rule
42”)).
29
Id.; Sprint Nextel Corp. v. iPCS , Inc., 2008 WL 2861717, at *1 (Del. Ch. July 22, 2008)
(“The ‘substantial issue’ requirement is met when an interlocutory order decides a main question
of law which relates to the merits of the case, and not to collateral matters.”).
30
TowerHill Wealth Mgmt., 2008 WL 4615865, at *2.
31
Def.’s Letter in Support of Appl. for Certification of Interlocutory Appeal at 1 (D.I. 286).
32
TowerHill Wealth Mgmt., 2008 WL 4615865, at *2 (citing cases); see also Curran
Composites, Inc. v. Total Holdings USA, Inc., 2009 WL 4170395, at *1 (Del. Nov. 25, 2009)
(noting that Court of Chancery found, inter alia, that denial of motion to dismiss for lack of
personal jurisdiction did not determine a substantial issue under Rule 42); Aveta, Inc. v. Olivieri,
2008 WL 4215973, at *1 (Del. Super. Ct. Sept. 10, 2008).
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federal district court decisions that expressly addressed and held Sternberg v.
O’Neil 33 – a 1988 Delaware Supreme Court case with which there is no conflicting
Delaware state court decision – was still good Delaware law. 34 Surely review of
the interlocutory order might terminate the litigation against this one defendant in
this multi-defendant asbestos action, but the rest of the case will languish on this
Court’s docket awaiting disposition. In turn, the Court does not believe
certification would promote the most efficient and just schedule to resolve the case.
Nor will the likely benefits of interlocutory review outweigh the probable costs,
such that interlocutory review is in the interests of justice. The Court finds,
therefore, that International Paper has failed to meet the strict standards for
certification under Rule 42.
(10) “Interlocutory appeals should be exceptional, not routine, because
they disrupt the normal procession of litigation, cause delay, and can threaten to
exhaust scarce party and judicial resources.” 35 This case is not exceptional. And
so the Court must refuse to certify this interlocutory appeal.
33
550 A.2d 1105 (Del. 1988).
34
See Layne v. Gavilon Grain, LLC, 2015 WL 5052849, at *1 (Del. Aug. 27, 2015).
35
Del. Supr. Ct. R. 42(b)(ii).
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NOW, THEREFORE, IT IS HEREBY ORDERED that International
Paper’s Application for Certification of Interlocutory Appeal is hereby DENIED.
/s/ Paul R. Wallace
PAUL R. WALLACE, JUDGE
Original to Prothonotary
cc: All counsel via File & Serve
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