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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARK JACKSON,

Plaintiff,

v.

ROHM & HAAS COMPANY, et al.,

Defendants.

Civil Action No. 05-4988

MEMORANDUM / ORDER

Presently before the court is the Liberty Life defendants’ motion to amend the

Memorandum/Order of September 13, 2007 to provide a certificate of appealability under

28 U.S.C. § 1292(b). A § 1292(b) certificate is only appropriate if the district court’s

interlocutory 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). Here,

the Liberty Life defendants offer two such questions: (1) whether plaintiff Mark Jackson

appropriately pleaded a RICO enterprise, and (2) whether reliance is an element of mail

and wire fraud. I address each in turn.

As stated in my September 13, 2007, Memorandum/Order, I agree with the

defendants that a RICO plaintiff must plead a RICO enterprise distinct from the RICO

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defendants. Mem./Order of Sept. 13, 2007, at 5–6. But I concluded that Jackson had

pleaded the existence of a distinct, joint enterprise whereby the defendants worked

together to defraud him. Id. I recognize that defendants would read the complaint more

narrowly, but I do not regard that as a sufficient reason for allowing an interlocutory

appeal.

I also agree with defendants that there is a circuit split on whether reliance is a

necessary element of mail and wire fraud. Id. at 8–9. But, as stated in my previous

Memorandum/Order, because reliance is duly pleaded, resolving that issue at this

stage—either by this court or on appeal—is unnecessary. Id. at 9.

I further note that even if defendants were successful in having the RICO claims

dismissed on appeal, doing so would not “materially advance the termination of the

litigation,” as the remaining ERISA counts likely require discovery, and may require a

trial. Defendants cite Mitchell v. Eastman Kodak, 113 F.3d 433, 440 (3d Cir. 1997), for

the proposition that ERISA cases are generally decided on the administrative record. But

the Mitchell holding applies only to 29 U.S.C. § 1132(a)(1)(B) claims for denials of

benefits, and thus is not applicable to (and does not limit discovery on) Jackson’s two

§ 1132(a)(3) claims for breach of fiduciary duty. Moreover, the Mitchell holding allows

for discovery on some issues even in § 1132(a)(1)(B) cases. See Kosiba v. Merck & Co.,

384 F.3d 58, 67 n.5 (3d Cir. 2004). Thus, it would appear that this case will go to

discovery irrespective of whether the RICO claims are dismissed. Also, though it is true

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that the RICO claims are subject to a jury trial, whereas the ERISA claims are not, the

fact remains that this case may need a trial irrespective of whether the RICO claims are

dismissed. Therefore, I conclude that allowing for an interlocutory appeal would further

delay, not advance, the termination of this litigation.

* * * * *

AND NOW, this 4th day of October, 2007, for the foregoing reasons, it is hereby

ORDERED that the Liberty Life defendants’ motion for a certificate of appealability is

DENIED.

BY THE COURT:

/s/ Louis H. Pollak

____________________

Pollak, J.

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