The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TEN G, LLC CIVIL ACTION
VERSUS NO. 22-4426
CERTAIN UNDERWRITERS AT SECTION: D (5)
LLOYD’S, LONDON, ET AL.
ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Certification of Interlocutory Appeal
Pursuant to 28 U.S.C. § 1292(B).1 Plaintiff seeks certification to pursue interlocutory
appellate review of the portion of this Court’s July 25, 2023 Order and Reasons
wherein the Court held that the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards compels arbitration of Plaintiff’s claims for bad faith
penalties under Louisiana law because they fall within the scope of the arbitration
clause entered into between the parties.2 Defendants oppose the Motion.3 The
Motion was set for submission on October 17, 2023, and is therefore ripe for
determination.
After careful consideration of the parties’ memoranda and the applicable law,
the Motion is DENIED.
I. LAW AND ANALYSIS
The Court may certify an interlocutory order for immediate appeal if it finds
that: (1) the order involves a controlling question of law; (2) as to which there is
1 R. Doc. 23.
2 Id. at p. 1 (citing R. Doc. 22).
3 R. Doc. 28.
substantial ground for difference of opinion; and (3) “an immediate appeal from the
order may materially advance the ultimate termination of the litigation.”4 The Fifth
Circuit strictly construes the requirements of 28 U.S.C. § 1292(b), and all three
criteria must be met before this Court may certify an interlocutory appeal. 5
According to the Fifth Circuit, “The basic rule of appellate jurisdiction restricts review
to final judgments, avoiding the delay and extra effort of piecemeal appeals. Section
1292(b) appeals are “exceptional.”6 Thus, “An interlocutory appeal assuredly does
not lie simply to determine the correctness of a judgment of liability.”7 Further,
“Interlocutory appeals represent a rarely used exception to the strong judicial policy
disfavoring piecemeal appeals.”8 “The decision to certify an interlocutory appeal is
within the sound discretion of the district court.”9
The Court finds that Plaintiff has failed to make the required showing under
28 U.S.C. § 1292(b) to warrant certification of an interlocutory appeal of the Court’s
July 25, 2023 Order and Reasons, as Plaintiff’s Motion merely repeats arguments
that have already been discussed and rejected by the Court. Regarding the first
requirement for certification, the Court finds that Plaintiff has failed to show that
the Court’s July 25th Order and Reasons involves a controlling question of law.
Plaintiff offers only conclusory assertions that the Court’s rejection of Plaintiff’s
4 28 U.S.C. § 1292(b).
5 Weams v. FCA US L.L.C., Civ. A. No. 17-4-RLB, 2019 WL 3812222, at *1 (M.D. La. July 9, 2019)
(Bourgeois, M.J.) (citing Ala. Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972)).
6 Clark-Dietz and Associates-Engineers, Inc. v. Basic Const. Co., 702 F.2d 67, 69 (5th Cir. 1983).
7 Id. at 68.
8 Complaint of L.L.P.&D Marine, Inc., Civ. A. Nos. 97-1668, 97-2992, 97-3349, 1998 WL 113937, at *2
(E.D. La. Mar. 11, 1998) (Clement, J.) (citing Clark-Dietz, 702 F.2d at 69).
9 Complaint of L.L.P.&D Marine, Inc., 1998 WL 113937 at *2 (citing Swint v. Chambers Cnty. Comm’n,
514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)).
argument that its bad faith claims do not fall within the scope of the applicable
arbitration clause is a controlling question of law.10 As Defendants point out,
however, to constitute a controlling question of law for purposes of § 1292(b), the
question “must be a pure question of law; permissive interlocutory appeals are not
proper for determinations that involve application of law to fact.”11 Other courts in
this Circuit have held that whether a dispute falls within the scope of an arbitration
clause is not a “controlling question of law” for purposes of certification under §
1292(b).12 This Court agrees. Whether Plaintiff’s statutory bad faith claims fall
within the scope of the arbitration clause at issue is not a controlling question of law,
and instead involves the application of law to the facts of this case. Further, “a
question of law is controlling if reversal would terminate the litigation,”13 which is
not the case here. At best, reversal would return the parties back to the starting
point of this litigation, as a scheduling order has yet to be issued in this case. Thus,
10 R. Doc. 23-1 at pp. 5-6.
11 Anderson v. Jackson, Civ. A. No. 06-3298, 2007 WL 4414479, at *4 (E.D. La. Dec. 14, 2007) (Lemelle,
J.) (quoting La. Patients’ Compensation Fund Oversight Bd. V. St. Paul Fire & Marine Ins. Co., 411
F.3d 585, 588 (5th Cir. 2005)) (emphasis in original). See, R. Doc. 28 at p. 4.
12 See, Barker v. Halliburton Co., Civ. A. No. H-07-2677, 2008 WL 536640, at *2 (S.D. Tex. Feb. 27,
2008) (Miller, J.) (“In this case, the questions raised by the Barkers-whether the arbitration clause is
valid and whether the dispute falls under the arbitration clause-are not controlling questions of law
under § 1292(b). These are not abstract legal issues, but rather questions of law as applied to the facts
of this case.”); Dustrol, Inc. v. Champagne-Webber, Inc., Civ. A. No. 3:01–CV–0650–G, 2002 WL
122500, at *2 (N.D. Tex. Jan. 24, 2002) (Fish, C.J.) (“Specifically, these two issues are ‘(1) whether the
arbitration clause on which Champagne-Webber relies actually covers the controversy giving rise to
Champagne-Webber’s claims against Dustrol, and (2) whether Champagne-Webber’s conduct,
particularly its filing of the identical claims against Dustrol in state court without invoking the
arbitration clause, constituted a waiver of any right to arbitrate.’ [] The court finds neither of these
grounds is substantial enough to warrant certification under § 1292(b), particularly in light of the fact
that Dustrol’s motion for certification simply repeats arguments that already have been discussed and
rejected by the court.”).
13 Mosaic Underwriting Service, Inc. v. Moncla Marine Operations, LLC, Civ. A. No. 12-2183, 2013 WL
2903083, at *9 (E.D. La. June 12. 2013) (Feldman, J.) (citing McAuslin v. Grinnell Corp., Civ. A. No.
97-775, 2000 WL 1251966, at *2 (E.D. La. Sept. 5, 2000) (Vance, J.)).
the Court finds that Plaintiff has failed to satisfy the first requirement for
certification under § 1292(b).
Even if the Court found that the question presented for certification was a
“controlling question of law,” Plaintiff has failed to show that there exist substantial
grounds for difference of opinion as to that controlling question of law. As Defendants
correctly point out, Plaintiff merely disagrees with the portion of the Court’s July 25,
2023 Order and Reasons in which the Court determined that Plaintiff’s bad faith
claims fall within the scope of the applicable arbitration clause, which is insufficient
to establish that there is a substantial ground for a difference of opinion.14
As explained by another Section of this Court, “A substantial ground for
difference of opinion exists if the circuits are in dispute on the question and the Court
of Appeals of the circuit [encompassing the district court] has not spoken on the point
. . . or if novel and difficult questions of first impression are presented.”15 Plaintiff
has failed to direct the Court to any dispute between the circuits regarding whether
its bad faith claims fall within the scope of the arbitration clause at issue. Instead,
Plaintiff asserts that, “whether the Convention compels arbitration of penalty and
bad-faith claims is [sic] purely legal and controlling issue that appears to be res nova
in the Fifth Circuit.”16 Plaintiff then merely asserts that, “There is a substantial
14 See, Clark-Dietz and Associates-Engineers, Inc. v. Basic Const. Co., 702 F.2d 67, 69 (5th Cir. 1983)
(“Section 1292(b) appeals are exceptional. They are permitted only when there is a substantial
difference of opinion about a controlling question of law and the resolution of that question will
materially advance, not retard, ultimate termination of the litigation.”).
15 Fairfield Royalty Co. v. Island Operating Co., Inc., Civ. A. No. 10-3446, 2011 WL 6140665, at *2
(E.D. La. Dec. 9, 2011) (Lemelle, J.) (quoting In re Chinese-Manufactured Drywall Prods. Liab. Litig.,
MDL No. 2047, 2011 WL 2443693 (E.D. La. 2011) (Fallon, J.)) (internal quotation marks omitted).
16 R. Doc. 23-1 at p. 6.
ground for difference of opinion because the legal basis for the Court’s July 25, 2023
ruling is not directly supported by any Fifth Circuit decision.”17 Plaintiff points out
that in its July 25, 2023 Order and Reasons, this Court relied upon Figear, LLC v.
Velocity Risk Underwriters Claims, a case in which another Section of this Court
rejected the same argument made by Plaintiff in this case.18 Plaintiff asserts that
the plaintiff in Figear appealed that decision, but the appeal was dismissed as moot
when the parties reached a settlement.19 Plaintiff argues that because the appeal
was dismissed, “the Fifth Circuit did not have the opportunity to speak to, resolve,
and provide much needed guidance on this unquestionably important question of
law.”20
Plaintiff’s arguments are misplaced. As explained in the Court’s July 25, 2023
Order and Reasons, the Fifth Circuit has held that, “A presumption of arbitrability
exists requiring that whenever the scope of an arbitration clause is fairly debatable
or reasonably in doubt, the court should decide the question of construction in favor
of arbitration.”21 The Court also pointed out in its July 25, 2023 Order and Reasons
that at least four other Sections of this Court and a Section of the Middle District of
Louisiana have concluded that bad faith claims fall within the scope of a broad
17 R. Doc. 23-1 at p. 6.
18 R. Doc. 23-1 at p. 6 (citing Figear, Civ. A. No. 22-1094, 2022 WL 2812980, at *2 (E.D. La. July 18,
2022) (Fallon, J.)).
19 R. Doc. 23-1 at p. 6.
20 Id. at p. 7.
21 R. Doc. 22 at p. 9 (citing Mar-Len of Louisiana, Inc. v. Parsons-Gilbane, 773 F.2d 633, 635-36 (5th
Cir. 1985) (citing United Steelworkers of America v. Warrior & Gulf Navigational Co., 363 U.S. 574,
583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)); Sedco, Inc. v. Petroleos Mexicanos Mexican Nat. Oil
Co. (Pemex), 767 F.2d 1140, 1145 (5th Cir. 1985) (citing authority) (“Thus, as a general rule, whenever
the scope of an arbitration clause is in question, the court should construe the clause in favor of
arbitration.”)).
arbitration clause, like the arbitration clause at issue in this case, and have compelled
arbitration of bad faith claims.22 As such, the Court finds that Plaintiff has failed to
satisfy the second requirement for certification under 28 U.S.C. § 1292(b).
Because the Court has determined that Plaintiff has failed to show two of the
three criteria that must be met before the Court may certify an interlocutory appeal
under 28 U.S.C. § 1292(b), Plaintiff's Motion must be denied. The Court need not
address the third requirement that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.
II. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff's Motion for
Certification of Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(B)?3 is DENIED.
New Orleans, Louisiana, November 30, 2023.
WENDY B. ik
United States District Judge
22 R, Doc. 22 at pp. 14-16 (citing Figear, Civ. A. No. 22-1094, 2022 WL 2812980 at *2-3; STMB
Properties, LLC, v. Certain Underwriters at Lloyd’s London, Civ. A. No. 22-2229, 2022 WL 3924313, at
*2-3 (E.D. La. Aug. 31, 2022) (Africk, J.); Georgetown Home Owners Association, Inc. v. Certain
Underwriters at Lloyd’s, London, Civ. A. No. 20-102-JWD-SDJ, 2021 WL 359735 at *15 (M.D. La. Feb.
2, 2021) (deGravelles, J.); Olsen Securities Corp. v. Certain Underwriters at Lloyd’s London, Civ. A.
No. 22-3120, 2023 WL 405487, at *6 (E.D. La. Jan. 25, 2023) (Brown, C.J.); City of Kenner v. Certain
Underwriters at Lloyd’s London, Civ. A. No. 22-2167, 2022 WL 169611380, at *3 (E.D. La. Nov. 16,
2022) (Vance, J.).
23 R. Doc. 23.