Jackson County Employees' Retirement System v. Ghosn

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JACKSON COUNTY EMPLOYEES’ )

RETIREMENT SYSTEM, et al., )

)

Plaintiffs, )

) NO. 3:18-cv-01368

v. )

) JUDGE CAMPBELL

CARLOS GHOSN, et al., ) MAGISTRATE JUDGE NEWBERN

)

Defendants. )

MEMORANDUM

Pending before the Court are Defendant Nissan Motor Co., Ltd.’s (“Nissan”) Motion for

Partial Reconsideration or Certification for Interlocutory Appeal of the Court’s December 29, 2020

Order (Doc No. 147) and Defendant Carlos Ghosn’s (“Ghosn”) Motion for Certification of

Interlocutory Appeal. (Doc. No. 151). Plaintiffs filed Responses in Opposition (Doc. Nos. 155,

156), and Defendants filed Replies (Doc. Nos. 157, 165). Nissan also filed a Notice of

Supplemental Authority. (Doc. No. 189). For the reasons discussed below, Defendants’ motions

will be DENIED.

I. PROCEDURAL BACKGROUND

On August 5, 2019, Ghosn moved to dismiss the claims against him and Nissan moved to

dismiss the claims brought against it under the Financial Instruments and Exchange Act of Japan

(“FIEA”) for lack of personal jurisdiction. (See Doc. Nos. 77, 68).1 The Court, in its discretion,

exercised pendent jurisdiction over Nissan with respect to the FIEA claims. (See Doc. No. 136 at

11-14). The Court also determined that it has personal jurisdiction over Ghosn. (Id. at 19-24).

1 Ghosn also moved to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, and Nissan also

moved to dismiss the FIEA claims on the basis of forum non conveniens and international comity. (See id.).

On January 12, 2021, Nissan filed the pending Motion for Partial Reconsideration or

Certification for Interlocutory Appeal of the Court’s December 29, 2020 Order (Doc No. 147). On

January 19, 2021, Ghosn filed the pending Motion for Certification of Interlocutory Appeal (Doc.

No. 151) with respect to the same Order.

II. STANDARDS OF REVIEW

A. Rule 54

While the Federal Rules of Civil Procedure do not to explicitly address motions to

reconsider interlocutory orders, “[d]istrict courts have authority both under common law and Rule

54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final

judgment.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir.

2004) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). Thus, district courts may

“afford such relief from interlocutory orders as justice requires.” Id. (quoting Citibank N.A. v.

FDIC, 857 F. Supp. 976, 981 (D.D.C. 1994)) (internal brackets omitted). This standard “vests

significant discretion in district courts.” Id. at 959 n.7. Courts traditionally will find justification

for reconsidering interlocutory orders when there is (1) an intervening change of controlling law;

(2) new evidence available; or (3) a need to correct clear error or prevent manifest injustice.

Louisville/Jefferson Cty. Metro Gov't v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009).

B. Interlocutory Appeal

Pursuant to 28 U.S.C. § 1292:

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.

28 U.S.C. § 1292(b). Review under Section 1292(b) “should be sparingly applied” and “is to be

used only in exceptional cases.” In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013); see also

In re Trump, 874 F.3d 948, 952 (6th Cir. 2017) (“[A]n interlocutory appeal from a denial of a

motion to dismiss should not be granted cavalierly.”). “The burden of showing exceptional

circumstances justifying an interlocutory appeal rests with the party seeking review.” DRFP, LLC

v. Republica Bolivariana de Venezuela, 945 F. Supp. 2d 890, 918 (S.D. Ohio 2013). “[D]istrict

court judges have broad discretion to deny certification even where the statutory criteria are met.”

Lofgren v. Polaris Indus. Inc., --- F. Supp. 3d ---, 2021 WL 1022751, at *2 (M.D. Tenn. Mar. 16,

2021) (citation omitted).

III. ANALYSIS

A. Motion to Reconsider

In support of its partial motion to dismiss for lack of personal jurisdiction, Nissan submitted

that “[t]he exercise of pendent personal jurisdiction is a matter of discretion” and argued that the

Court “should decline to exercise pendent jurisdiction” because: (1) the class size for the FIEA

claim would be larger than the class size for the Exchange Act claims, (2) the FIEA claim involves

unsettled issues of Japanese law, and (3) it would be unfair for Nissan to defend claims based on

Japanese securities traded on the Tokyo stock exchange and that arise under Japanese law. (See

Doc. No. 105 at 10-15; Doc. No. 125 at 2-4). The Court, in its discretion, decided to exercise

pendent jurisdiction over Nissan with respect to the claims under FIEA. (See Doc. No. 136 at 11-

14). In the motion for reconsideration, Nissan contends that the Court’s ruling was in error and

raises new arguments regarding the validity and application of pendent personal jurisdiction in the

present case. Generally, courts will not reconsider a decision based on arguments not presented by

a party in its prior motion. See Al-Sadoon v. FISI*Madison Fin. Corp., 188 F. Supp. 2d 899, 901-

02 (M.D. Tenn. 2002). The Court does not find cause to do so here.

In its remaining arguments, Nissan does not identify an intervening controlling decision or

newly discovered evidence not previously available. Instead, it argues that “unique features of this

case – which the Court’s decision does not directly address – render the exercise of pendent

personal jurisdiction clear error.” (Doc. No. 148 at 16). Specifically, Nissan contends that

“although the Court acknowledged [its] argument that ‘the class size for the FIEA claim would be

much larger than that for the Exchange Act claim’, [the Court] did not explain why the exercise of

pendent personal jurisdiction is nonetheless appropriate” and that the Court “did not discuss the

impact of [the foreign nature of the FIEA claims] on the pendent personal jurisdictional analysis.”

(Id. at 18-20).

While the Court’s prior Order and Memorandum may not have specifically discussed each

of the points raised in Nissan’s motion, the Court carefully considered each of the arguments made

when deciding to exercise pendent personal jurisdiction and does not now find cause to reconsider

that decision. See, e.g., D.E. v. John Doe, 834 F.3d 723, 728 (6th Cir. 2016) (upholding a district

court's denial of a motion for reconsideration because “although [the district court] did not

specifically discuss each of the [movant's] arguments ... it did consider them when concluding that

his claims lacked merit”).

B. Motions for Interlocutory Appeal

In its Motion, Nissan requests that the Court certify its decision to exercise pendent

personal jurisdiction over Nissan with respect to the FIEA claims for interlocutory appeal. (Doc.

No. 148 at 8). Ghosn “seeks certification to resolve the legal question of what suffices to show

specific personal jurisdiction in the globalized context of the Internet –specifically, whether the

[facts of the present case] suffice[] to show (1) that [] Ghosn purposefully availed himself to the

exercise of specific jurisdiction in the United States, (2) that this cause of action arose from []

Ghosn’s contacts in the United States, (3) that the exercise of jurisdiction is reasonable under these

circumstances and is therefore appropriate under the constraints of the Due Process Clause.” (Doc.

No. 152 at 5-6) (“Ghosn seeks interlocutory review of a purely legal question of whether the

exercise of personal jurisdiction is constitutional in these circumstances.”).

1. Controlling Question of Law

“As many cases recognize, there are actually two requirements within what this Court (and

most others) has labeled as § 1292(b)’s first element: (1) The question involved must be one of

law; and (2) It must be controlling.” Lofgren, 2021 WL 1022751, at *3 (quoting U.S. ex rel. Elliott

v. Brickman Grp. Ltd., LLC, 845 F. Supp. 2d 858, 865 (S.D. Ohio 2012)). “A legal issue is

controlling if it could materially affect the outcome of the case. A legal question of the type

envisioned in § 1292(b), however, generally does not include matters within the discretion of the

trial court.” In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002) (internal citation omitted).

With respect to Nissan, the Court agrees that the Order addressed a controlling question

because the Court would lack personal jurisdiction over one set of Plaintiffs’ claims against Nissan

if the Sixth Circuit were to decide that the pendent personal jurisdiction doctrine does not exist or

apply. However, the Court is not convinced that the application of pendent personal jurisdiction in

this case is conducive with review of an isolated legal question. See id. The Court considered the

particular facts and circumstances in this case, judicial economy, convenience, and fairness to

litigants to determine, in its discretion, to apply pendent personal jurisdiction. Any review of the

Court’s decision would be highly fact intensive and would likely require review of how the Court

weighed the various considerations in reaching its conclusion. See DRFP, LLC, 945 F. Supp. 2d

at 918 (“Interlocutory appeals are intended for situations in which the court of appeals can rule on

a pure, controlling question of law without having to delve beyond the surface of the record in

order to determine the facts.”).

With respect to Ghosn, the Court agrees that the Order addressed a controlling question

since all claims against Ghosn would be dismissed if the Sixth Circuit found personal jurisdiction

should not be exercised over him. The question is not one purely of law because the Court applied

the law to the particular facts in this case to determine that Ghosn had minimum contacts to warrant

the Court’s exercise of specific personal jurisdiction over him. See Lofgren, 2021 WL 1022751, at

*4 n.6 (citing Singh v. Rosen, 984 F.3d 1142, 1148 (6th Cir. 2021) (describing a mixed question

of law and fact as “the application of a legal standard to settled facts”)).2 The Court finds that

Ghosn has not met the first requirement. See U.S. ex rel. Elliott, 845 F. Supp. 2d at 864 (Ҥ 1292(b)

is not appropriate for securing early resolution of disputes concerning whether the trial court

properly applied the law to the facts.”).

2. Substantial Ground for Difference of Opinion

“District courts in this circuit have interpreted a substantial ground for difference of opinion

... regarding the correctness of the decision to mean when (1) the question is difficult, novel and

either a question on which there is little precedent or one whose correct resolution is not

substantially guided by previous decisions; (2) the question is difficult and of first impression; (3)

a difference of opinion exists within the controlling circuit; or (4) the circuits are split on the

question.” Lofgren, 2021 WL 1022751, at *5 (quoting In re Miedzianowski, 735 F.3d 383, 384

(6th Cir. 2013)). “Simply because a court decides a novel issue or a question of first impression

does not mean there is substantial ground for difference of opinion concerning the correctness of

2 “This is true even if the facts are generally undisputed.” Id.

the ruling. Serious doubt as to how an issue should be decided must exist in order for there to be

substantial ground for difference of opinion.” Id. (citation omitted).

The Court does not find that any of the situations described in Miedzianowski apply. The

correct legal standard is clear enough, and this is not a case of first impression within this Circuit.

See, e.g., J.M. Smucker Co. v. Promotion in Motion, Inc., 420 F. Supp. 3d 646, 659 (N.D. Ohio

2019) (applying pendent personal jurisdiction); Capitol Spec. Ins. Corp. v. Splash Dogs, LLC, 801

F. Supp. 2d 657, 668 (S.D. Ohio 2011) (same); Morris Aviation, LLC v. Diamond Aircraft Indus.,

Inc., 730 F. Supp. 2d 683, 694 (W.D. Ky. 2010) (the claim over which pendent jurisdiction is

asserted must share a “common nucleus of operative fact” with some claim over which personal

jurisdiction is otherwise proper); Jude v. First Nat. Bank of Williamson, 259 F. Supp. 2d 586, 596-

97 (E.D. Ky. 2003) (applying pendent personal jurisdiction).3

The cases Nissan cited from within this Circuit as having questioned the existence and

scope of pendent personal jurisdiction, (see Doc. No. 148 at 10 n.1, 16-17, 23), did not have

jurisdiction based on a nationwide service of process provision or federal question jurisdiction as

in the present case or are otherwise distinguishable. See Wiggins v. Bank of Am., N. Am., 488 F.

Supp. 3d 611, 624-25 (S.D. Ohio 2020) (declining to apply pendent jurisdiction because “the

precedent for applying pendent jurisdiction in diversity cases is weak at best”) (citing Bilek v.

Burris, 2010 WL 4629616, at *7 (E.D. Ky. Nov. 8, 2010) (noting that pendent jurisdiction is most

often utilized in cases where jurisdiction is based on a nationwide service of process provision not

a state long-arm statute)); Maclin v. Reliable Reps. of Texas, Inc., 314 F. Supp. 3d 845, 849-51

(N.D. Ohio 2018) (holding that Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco

Cty., 137 S. Ct. 1773 (2017) divested the court of specific jurisdiction over the FLSA claims of

3 In re Regions Morgan Keegan ERISA Litig., 741 F. Supp. 2d 844, 849 (W.D. Tenn. 2010) (“At

least fourteen district courts in this Circuit have addressed this issue. It is not one of first impression.”).

non-Ohio plaintiffs); Musto v. Zaro, 2018 WL 1565604, at *3 (S.D. Ohio Mar. 30, 2018) (pendent

jurisdiction was not at issue; jurisdiction based on Ohio’s long-arm statute and no federal

question); Bd. of Forensic Document Examiners, Inc. v. Am. Bar Ass'n, 2017 WL 549031, at *6

(W.D. Tenn. Feb. 9, 2017) (pendent personal jurisdiction was not at issue; court lacked specific

jurisdiction over the defendant as to each claim asserted against it); In re FCA US LLC Monostable

Elec. Gearshift Litig., 2017 WL 11552971 (E.D. Mich. Apr. 19, 2017) (jurisdiction based on

California’s long-arm statute and no federal question); Kondash v. Kia Motors Am., Inc., 2016 WL

11246421, at *5-7 (S.D. Ohio June 24, 2016) (jurisdiction based on Ohio’s long-arm statute and

no federal question).4 The Court finds that Nissan has not met the second statutory consideration.

4 The cases Nissan cited from outside this Circuit are also distinguishable. See Carter v. Ford Motor Co., No. 19-

62646-CIV, 2021 WL 1165248, at *14–15 (S.D. Fla. Mar. 26, 2021) (“in the absence of a statute or Federal Rule that

authorizes nationwide service of process, this Court must enforce the Florida long-arm statute…. since the long-arm

exercise here has nothing to do with the Fifth Amendment, it doesn't implicate the hypothetical scenario the Court

“le[ft] open” at the end of Bristol-Myers. Bristol-Myers thus squarely forecloses the Plaintiffs’ pendent-party personal-

jurisdiction arguments here.”); Story v. Heartland Payment Sys., LLC, 461 F. Supp. 3d 1216, 1231–32 (M.D. Fla.

2020) (“named non-resident plaintiffs have not met their burden of demonstrating that the Court can exercise personal

jurisdiction over … a non-resident defendant[] in this diversity suit as to their claims, which do not arise in Florida.”);

Int'l Union, United Mine Workers of Am. v. CONSOL Energy, Inc., 465 F. Supp. 3d 556, 580-81 (S.D.W. Va. 2020)

(declining to exercise pendent personal jurisdiction where federal claim which formed basis for exercising pendent

personal jurisdiction was itself subject to dismissal); Moore v. Cecil, 488 F. Supp. 3d 1144, 1160 (N.D. Ala. 2020)

(“Eleventh Circuit law on the issue is sparse, but the rule appears to be that ‘personal jurisdiction over one individual

claim cannot be expanded to cover other related claims unless the claims ‘arose from the same jurisdiction generating

event.’”) (quoting RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed. Appx. 779, 788 (11th Cir. 2014)); Edwards

v. Schwartz, 378 F. Supp. 3d 468, 478 (W.D. Va. 2019) (jurisdiction based on Virginia’s long-arm statute and no

federal question); Horowitz v. AT&T Inc., 2018 WL 1942525, at *11-16 (D.N.J. Apr. 25, 2018) (“Because Larson and

Pollard's claims relate to their employment, the facts giving rise to their claims in this circumstance could not have

arisen in New Jersey. For that reason, there is no specific jurisdiction as to their claims against SERVICES and

MOBILITY.”); Greene v. Mizuho Bank, Ltd., 289 F. Supp. 3d 870, 871 (N.D. Ill. 2017) (jurisdiction based on the

Class Action Fairness Act and no federal question); Demaria v. Nissan N. Am., Inc., 2016 WL 374145, at *8 (N.D.

Ill. Feb. 1, 2016) (“Here, the FAC does not assert a single claim in which there is nationwide personal jurisdiction,

nor is it clear from the allegations that the claims of the out-of-state plaintiffs, as presently pled, arise out of a common

nucleus of operative fact.”); MG Design Assocs., Corp. v. Costar Realty Info., Inc., 224 F. Supp. 3d 621, 628 (N.D.

Ill. 2016) (pendent jurisdiction was not at issue; found that Defendant possessed sufficient minimum contacts to

authorize specific personal jurisdiction, but plaintiff failed to adequately allege federal claim). The Second, Third,

Fourth, Seventh, Ninth, Tenth, and D.C. Circuits have all recognized pendent personal jurisdiction explicitly. See,

e.g., Laurel Gardens, LLC v. Mckenna, 948 F.3d 105, 123 (3d Cir. 2020) (“This Court recognized the notion of pendent

personal jurisdiction more than forty years ago in Robinson v. Penn Central Co., 484 F.2d 553 (3d Cir. 1973).”);

Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004); United States v. Botefuhr,

309 F.3d 1263, 1272–75 (10th Cir. 2002); Robinson Eng'g Co. Pension Plan and Trust v. George, 223 F.3d 445, 449–

50 (7th Cir. 2000); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 628–29 (4th Cir. 1997); IUE AFL–CIO Pension

Fund v. Herrmann, 9 F.3d 1049, 1056–57 (2d Cir. 1993); Oetiker v. Jurid Werke, G.m.b.H., 556 F.2d 1, 5 (D.C. Cir.

1977). While the Eleventh, Fifth, and First Circuits have not yet expressly ruled on pendent personal jurisdiction, see,

Ghosn asserts that there is substantial ground for difference of opinion as to the correctness

of the Court’s prior Order because whether the exercise of personal jurisdiction over him is

constitutional under the facts of this case is a complex issue of first impression in an area of the

law that is continually evolving. (Doc. No. 152 at 6-9; Doc. No. 165 at 3-5). Ghosn offers no

conflicting precedent or other cases that were decided differently, and instead focuses on the fact

that the Sixth Circuit has not addressed the personal jurisdiction issue in a like case. Although the

facts of this case may be novel or complex, the correct legal standard for determining whether to

exercise personal jurisdiction over a defendant is well established. See Lofgren, 2021 WL

1022751, at *5 n.8 (“This case is a ‘first’ in that it is surely the first case to apply that settled legal

standard to the very specific facts at hand here. But that is not what is meant in this context by

‘case of first impression,’ which refers to a first vetting of a legal issue and not the first vetting of

particular facts.”). Accordingly, the Court finds that Ghosn has not met the second statutory

consideration. See id. at *5 (citing Gieringer v. Cincinnati Ins. Cos., 2010 WL 2572054, at *3

(E.D. Tenn. June 18, 2010) (“the element of ‘substantial ground for difference of opinion’ requires

e.g., Thomas v. Brown, 504 F. App'x 845, 847 (11th Cir. 2013) (“If the forum's long-arm statute provides jurisdiction

over one claim, the district court has personal jurisdiction over the entire case so long as the claims arose from the

same jurisdiction generating event.”) (citing Cronin v. Washington Nat'l Ins. Co., 980 F.2d 663, 671 (11th Cir. 1993));

Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274–75 (5th Cir. 2006) (plaintiff bringing multiple claims that

arise out of different forum contacts must establish specific jurisdiction for each claim); Phillips Exeter Acad. v.

Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999) (“Questions of specific jurisdiction are always tied to

the particular claims asserted.”), district courts in those circuits have adopted and applied pendent personal

jurisdiction. See, e.g., ESPOT, Inc. v. MyVue Media, LLC, 492 F. Supp. 3d 672, 700 (E.D. Tex. 2020) (“When a court

has personal jurisdiction over the defendant on one claim, the court can exercise pendent personal jurisdiction over

the same defendant on all other claims arising out of the same nucleus of operative fact.”) (citations omitted); JMF

Med., LLC v. Team Health, LLC, 490 F. Supp. 3d 947, 972 (M.D. La. 2020) (applying pendent personal jurisdiction);

D'Jamoos v. Atlas Aircraft Ctr., Inc., 669 F. Supp. 2d 167, 174-75 (D.N.H. 2009) (same); Rolls-Royce Corp. v. Heros,

Inc., 576 F. Supp. 2d 765, 784 (N.D. Tex. 2008) (“Although the Fifth Circuit has not yet addressed this doctrine of

federal common law, the Tenth Circuit has noted that every circuit court to decide the issue has approved pendent

personal jurisdiction. * * * The court therefore concludes that, if Rolls–Royce's remaining claims arise out of the same

nucleus of operative fact as its RICO claims, it is within the court's discretion to exercise pendent personal jurisdiction

over them.”); see also Elandia Int'l, Inc. v. Ah Koy, 690 F. Supp. 2d 1317, 1341 (S.D. Fla. 2010) (applying pendent

personal jurisdiction).

more than mere disagreement with the district court's decision or an assertion that such decision

was incorrect; rather, there must be genuine doubt as to the correct legal standard.”)).

3. Materially Advance Ultimate Termination of Litigation

“The requirement that an appeal may materially advance the ultimate termination of the

litigation is closely tied to the requirement that the order involve a controlling question of law.”

Lofgren, 2021 WL 1022751, at *6 (citation omitted). “The moving party satisfies the third

requirement where the resolution of a controlling legal question would avoid trial, as well as when

it would otherwise substantially shorten the litigation. In other words, an interlocutory appeal

materially advances litigation when it saves judicial resources and litigant expense.” /d.

Although resolution of the pendent personal jurisdiction issue could potentially result in

the dismissal of the FEJA claims, Nissan would still have to defend the Exchange Act claims that

arise from the same facts. If unsuccessful, such an interlocutory appeal would no doubt cause delay

to this action. Under these circumstances, it appears that proceeding in this Court ts likely to result

in a more efficient resolution of this case.

As for Ghosn, it is true that dismissal of all claims against him for lack of personal

Jurisdiction would save him the time and expense of trial. But the claims asserted against Ghosn

are the same as those asserted against multiple defendants such that litigation will be conducted in

substantially the same manner regardless of the court’s decision. See In re City of Memphis, 293

F.3d at 351 (“[W]Jhen litigation will be conducted in substantially the same manner regardless of

the court's decision, the appeal cannot be said to materially advance the ultimate termination of the

litigation.”). Therefore, the parties have not met the third statutory consideration.

An appropriate order will enter. ,

UNITED STATES DISTRICT JUDGE

10