Procter & Gamble U.S. Bus. Servs. Co. v. Estate of Rolison, CIVIL ACTION NO. 3:17-CV-762

• Decision Date: 06 April 2021
• Docket Number: CIVIL ACTION NO. 3:17-CV-762
• Citation: Procter & Gamble U.S. Bus. Servs. Co. v. Estate of Rolison, CIVIL ACTION NO. 3:17-CV-762 (M.D. Pa. Apr 06, 2021)
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: THE PROCTER & GAMBLE U.S. BUSINESS SERVICES COMPANY, as Plan Administrator and on Behalf of THE PROCTER & GAMBLE PROFIT SHARING TRUST AND EMPLOYEE STOCK OWNERSHIP PLAN and THE PROCTER & GAMBLE SAVINGS PLAN, Plaintiff, v. ESTATE OF JEFFREY ROLISON, Deceased, MARGARET M. LOSINGER, and MARY LOU MURRAY, Defendants.

THE PROCTER & GAMBLE U.S. BUSINESS SERVICES COMPANY,as Plan Administrator and on Behalf of THE PROCTER & GAMBLE PROFIT SHARING TRUSTAND EMPLOYEE STOCK OWNERSHIP PLANand THE PROCTER & GAMBLE SAVINGS PLAN, Plaintiff, v. ESTATE OF JEFFREY ROLISON, Deceased,MARGARET M. LOSINGER, and MARY LOU MURRAY, Defendants.

CIVIL ACTION NO. 3:17-CV-762

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

April 6, 2021

(JUDGEMARIANI)

MEMORANDUM OPINION

I.INTRODUCTION

Two motions are pending before the Court in the above-captioned matter: Defendant Estate of Jeffrey Rolison's Motion to Certify for Interlocutory Appeal (Doc. 112) filed on October 26, 2020, and DefendantMargaret M. Losinger's Motion to Require Bond for Appeal (Doc. 113) filed on November 6, 2020.These motions were filed after the Court denied the Motion for Reconsideration of the Estate of Jeffrey Rolison(Doc. 105) on September 24, 2020, (Doc. 111) which sought reconsideration of the Court's July 21, 2020, decision (Docs. 103, 104) granting Defendant, Margaret M. Losinger's Motion for Summary Judgment as to Proctor & Gamble's interpleader action and the Estate's crossclaim (Docs. 26, 84).

With the Memorandum Opinion of July 21, 2020, (Doc. 103), the Court determined that Defendant Losinger was decedent Jeffrey Rolison's proper beneficiary of the funds contained in the Procter & Gamble Profit Sharing Trust and Employee Stock Ownership Plan and The Procter & Gamble Savings Plan ("the Plans").In denying Defendant Estate's motion for reconsideration, the Court rejected Defendant Estate's assertion that reconsideration was warranted based on alleged errors of law.(Doc. 111at 2-5.)

Defendant Estate of Jeffrey Rolison's Motion to Certify for Interlocutory Appeal again points to error with the supporting brief specifically identifying the Court's application of the "substantial compliance doctrine," a Pennsylvania state court doctrine, to determine the proper beneficiary.(Doc. 112at 5-6;Doc. 114at 7.)

II.STANDARD FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b)

In most cases, only "final decisions" of district courts are appealable to the courts of appeals.See28 U.S.C. § 1291;Fed. R. Civ. P. 54(a)("'Judgment' as used in these rules includes a decree and any order from which an appeal lies.").An interlocutory order by a district court is not such a "final decision."SeeTara M. by Kanter v. City of Phila., 145 F.3d 625, 627(3d Cir.1998).

However, under 28 U.S.C. § 1292(b), interlocutory orders can be appealable if certified by the district court and subsequently accepted by the court of appeals forconsideration.28 U.S.C. § 1292(b)."Section 1292(b) was the result of dissatisfaction with the prolongation of litigation and with harm to litigants uncorrectable on appeal from a final judgment which sometimes resulted from strict application of the federal final judgment rule."Katz v. Carte Blanche Corp., 496 F.2d 747, 753(3d Cir.1974).The purpose of Section 1292(b) is to avoid "a wasted protracted trial if it could early be determined that there might be no liability," such as "cases in which a long trial results from a pretrial order erroneously overruling a defense going to the right to maintain the action."Id. at 754(citing legislative history of Section 1292(b))."Congress intended that [S]ection 1292(b) should be sparingly applied.It is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation."Milbert v. Bison Labs., Inc., 260 F.2d 431, 433(3d Cir.1958).

Section 1292(b) states:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order.The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

28 U.S.C. § 1292(b)(emphasis added).Thus, "[f]or a district court to properly grant a certificate of appealability under § 1292(b), its order must: (1) involve a 'controlling question of law,'(2) offer 'substantial grounds for difference of opinion' as to its correctness, and (3) if immediately appealed, 'materially advance the ultimate termination of the litigation.' "G.L. v. Ligonier Valley Sch. Dist. Auth., Civ. A.No. 2:13-CV-00034, 2013 WL 6858963, at *6(W.D. Pa.Dec. 30, 2013)(quotingKatz, 496 F.2d at 754), aff'd and remanded, 802 F.3d 601(3d Cir.2015).

Courts in the Third Circuit have further defined the three elements of the Section 1292(b) test.First, "[a] controlling question of law must encompass at the very least every order which, if erroneous, would be reversible error on final appeal."Katz, 496 F.2d at 755."'Controlling' means serious to the conduct of the litigation in a practical or legal sense."FTC v. Wyndham Worldwide Corp., 10 F. Supp. 3d 602, 633(D.N.J.2014)(citations omitted), aff'd, 799 F.3d 236(3d Cir.2015).

Next, "[a]'substantial ground for difference of opinion' must arise out of doubt as to the correct legal standard, such as conflicting precedent, the absence of controlling law, or complex statutory interpretation."Karlo v. Pittsburgh Glass Works, LLC, Civ. A.No. 2:10-CV-1283, 2014 WL 12539666, at *1(W.D. Pa.July 3, 2014)(citingGlover v. Udren, Civ. A.No. 08-990, 2013 WL 3072377, at *3(W.D. Pa.June 18, 2013)).Questions of first impression can present substantial grounds for difference of opinion.Nationwide Life Ins. Co. v. Commonw. Land Title Ins. Co., Civ. A.No. 05-281, 2011 WL 1044864, at *3(E.D. Pa.Mar. 23, 2011)("The sheer absence of any persuasive, let alone controlling, law on this issue is sufficient on its own to provide substantial grounds for difference of opinion.");see alsoWyndham, 10 F. Supp. 3d at 634-35(certifying for appeal an issue of first impression regarding the application of the FTC Act to a data security breach and noting that the "novelty" of the liability issues means that "reasonable jurists may differ over the court's resolution" of the issues).However, "[a]party's strong disagreement with the Court's ruling does not constitute a 'substantial ground for difference of opinion[,] ... [n]or does a dispute over the application of settled law to a particular set of facts."Karlo, 2014 WL 12539666, at *1(citations omitted).

"Finally, a § 1292(b) certification 'materially advances the ultimate termination of the litigation' where the interlocutory appeal eliminates: '(1) the need for trial; (2) complex issues that would complicate the trial; or (3) issues that would make discovery more costly or burdensome.'"Karlo, 2014 WL 12539666, at *1(quotingLitgo N.J., Inc. v. Martin, Civ. A.No. 06-2891 (AET), 2011 WL 1134676, at *3(D.N.J.Mar. 25, 2011)).

In addition to the three elements of the Section 1292(b) test, another factor for district courts meriting consideration is whether the issues in the action are of "nationwide significance."Wyndham, 10 F. Supp. 3d at 636(considering, in a consumer protection enforcement action brought by the FTC, "the nationwide significance of the issues in this action—which indisputably affect customers and businesses in a climate where we collectively struggle to maintain privacy while enjoying the benefits of the digitalage");Nationwide, 2011 WL 1044864, at *4("Moreover, the Third Circuit's determination of this issue could potentially have a widespread impact on the underwriting and application of land title insurance policies in the United States.").

III.ANALYSIS

A.Finality of July 21, 2020, Order

First, the parties dispute whether the Court's July 21, 2020, Order (Doc. 104) was a final order.Defendant Losinger asserts that the Court's order was final and the time for appeal has run.(Doc. 121at 7;Doc. 123at 2.)Defendant Estate maintains that, by definition, the order was not final in that there are still pending and related counterclaims and crossclaims of record.(Doc. 122at 3-4.)

Under 28 U.S.C. § 1291, "[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States."28 U.S.C. § 1291.As stated in Elliott v. Archdiocese of New York, 682 F.3d 213, 219-20(3d Cir.2012), "[g]enerally, an order which terminates fewer than all claims pending in an action or claims against fewer than all the parties to an action does not constitute a 'final' order for purposes of 28 U.S.C. § 1291."Id. at 219(citingSears, Roebuck & Co. v. Mackey, 351 U.S. 427, 431-32(1956);Carter v. City of Phila., 181 F.3d 339, 343(3d Cir.1999)).Elliott also explained the exception carved out under Rule 54(b) of the Federal Rules of Civil Procedure where " a district court may convert an order adjudicating less than an entire action to theend that it becomes a 'final' decision over which a court of appeals may exercise jurisdiction under 28 U.S.C. § 1291."Id.

Rule 54(b) addresses "Judgment on Multiple Claims or Involving Multiple Parties" and provides that

[w]hen an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for

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