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No Interlocutory Appeal of Waiver Issue

In this suit for breach of a lease agreement, a Lynchburg U.S. District Court denies defendant health care company’s motion for certification of an interlocutory appeal of the following issue: “whether a defendant filing a motion to transfer or stay waives any and all rights to object to personal jurisdiction.”

I find the issue defendant wishes to certify for appeal is not a controlling question as that term has been described by the 4th Circuit, and I also find that granting defendant’s motion would not materially advance the termination of the litigation. Resolution of the question whether defendant waived its objection to personal jurisdiction by failing to raise it in its motion to dismiss, stay or transfer would not be completely dispositive of the litigation, either as a legal or practical matter, whichever way it goes. Regardless of how the 4th Circuit might decide the issue, this court would still have to decide the merits of the case.

On the one hand, if the 4th Circuit were to find that defendant had not waived its personal jurisdiction objection, such a decision would not be completely dispositive of the personal jurisdiction issue raised by a single defendant, let alone the entire case; this court would still have to decide whether defendant is subject to personal jurisdiction in this district. On the other hand, if the 4th Circuit were to agree with this court and find that defendant did waive its personal jurisdiction objection, then the interlocutory appeal would have served only to further delay resolution of this matter, which has already been delayed by defendant’s decision to file separate motions to dismiss. Thus, regardless of the outcome of an interlocutory appeal, granting defendant leave to appeal at this stage would not dispose of the case or save resources, but rather would prolong the case without materially advancing the termination of the litigation.

In sum, I find that defendant has failed to meet the strict requirements for certification of interlocutory appeal set forth by 28 U.S.C. § 1292(b).

Motion denied.

Elderberry of Weber City LLC v. Living Centers – Southeast Inc. (Moon) No. 6:12cv52, April 5, 2013; USDC at Lynchburg, Va. VLW 013-3-197, 5 pp.

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