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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SUSAN D. ERB, Administratrix of :

the Estate of BARBARA JO BUCK, : No. 4:05-CV-0011

deceased, :

Plaintiff, :

: (Judge McClure)

v. :

:

ROADWAY EXPRESS, INC. :

Defendant. :

:

MICHAEL L. LONGNECKER, :

Administrator of the Estate of :

AUDREY M. LONGNECKER, :

deceased, :

Plaintiff, :

:

v. :

:

ROADWAY EXPRESS, INC. :

Defendant. :

O R D E R

June 23, 2005

BACKGROUND:

This consolidated diversity action arises out of a multi-vehicle accident in

Indiana allegedly caused in some part by a tractor-trailer operated by an employee

of defendant Roadway Express, Inc. Plaintiffs are the administrators, respectively,

of the estates of a driver and passenger of one vehicle involved in the accident.

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On April 19, 2005, the court denied defendant’s motion to dismiss and its

alternative motion to transfer. Now before the court is defendant’s motion to

amend that order to provide for interlocutory appeal under 28 U.S.C. § 1292(b). 

For the following reasons, the court will deny the motion.

DISCUSSION:

A district court may certify an order for interlocutory appeal pursuant to 28

U.S.C. § 1292(b) if the order: (1) involves a controlling question of law; (2) there is

substantial ground for difference of opinion with respect to that question, and (3)

immediate appeal may materially advance the ultimate termination of the litigation. 

See 28 U.S.C. § 1292(b); Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.

1974). To avoid piecemeal litigation, district courts should only certify an order

under § 1292(b) in exceptional circumstances. See Milbert v. Bison Labs., Inc.,

260 F.2d 431, 433 (3d Cir. 1958).

A “controlling question of law” is one that is “serious to the conduct of the

litigation, either practically or legally,” such as whether an erroneous decision on the

question “would result in a reversal of a judgment after final hearing.” Katz, 496

F.2d at 755. Defendant argues that the court’s decision not to transfer the case to

the Southern District of Indiana involves a controlling question of law. It contends

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that transfer would result in application of Indiana law, specifically the damages

limitation provision of Ind. Code § 34-23-1-2. Defendant reasons that application

of § 34-23-1-2 would likely lead to early resolution of the case because it has

already tendered a confidential settlement offer in the amount of the statutory limit

($300,000), which was refused.

The court disagrees with defendant’s view that its decision not to transfer the

case is a controlling question of law. First, it is not at all clear whether Indiana law

would apply if the case was transferred to the Southern District of Indiana. See

Simon v. United States, 805 N.E.2d 798, 804-05 (Ind. 2004) (Indiana choice-of-law

rules presume the law of the place of the tort applies, unless presumption is

overcome by showing that the place of the tort bears little connection to the action). 

Second, as the parties’ motions in limine for a choice of law determination are still

pending before this court, Indiana law may apply if the case remains in this forum.

Third, the court is unconvinced that its decision not to transfer was an error

that could result in reversal. In its earlier memorandum and order, the court

analyzed the twelve pertinent factors that guide a district court’s decision whether

to transfer. Quantitatively, the factors may have favored transfer, but a decision to

transfer is a qualitative exercise. See Lacey v. Cessna Aircraft Co., 932 F.2d 170,

182 (3d Cir. 1991). In light of the “significant weight” attached to plaintiffs’ choice

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of forum, see Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995), and

the little to no weight attached to the other factors, the court was unconvinced that

defendant met its burden of justifying transfer. Nothing defendant now argues

leads the court to conclude that its decision not to transfer, a discretionary

decision, was in error. Further, even if that decision was in error, it is not error that

could result in a reversal of a judgment after final hearing.

Fourth, the court does not believe that its decision will thwart the expeditious

litigation of this case. Although defendant again makes reference to its fear of

multiple lawsuits arising out of the accident and the possibility of inconsistent

judgments, to the court’s knowledge, no other suits arising out of the accident have

been filed in Indiana or any other forum. 

In sum, for the above reasons, the court believes its decision not to transfer

is not a controlling question of law.

Additionally, for substantially similar reasons, the court does not believe that

certification under § 1292(b) would materially advance the ultimate termination of

this litigation. Again, the court is unaware of multiple lawsuits (let alone multiple

lawsuits all filed in Indiana), which might warrant consolidation and/or transfer and,

a fortiori, would result in ultimate termination of all litigation by operation of the

Indiana damages cap because, as stated above, it is an open question whether a

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district court in Indiana would determine that Indiana law applies.

Overall, the court finds that two of the three requirements for certification

under § 1292(b) are not met. Accordingly, the court will deny defendant’s motion.

NOW, THEREFORE, IT IS ORDERED THAT:

Defendant’s motion to amend order pursuant to 28 U.S.C. § 1292(b) (Rec.

Doc. No. 21), is denied.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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