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ELECTRIC MOBILITY CORP. v. BOURNS SENSORS/CONTROLS

March 13, 2000

ELECTRIC MOBILITY CORPORATION, PLAINTIFF,
V.
BOURNS SENSORS/CONTROLS, INC. AND HALL-MARK ELECTRONICS, INC., DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge.

  OPINION

In this contract case, involving the manufacture and sale of faulty machine parts, this Court is called upon to explore the doctrine of judicial admissions, as well as to examine the interplay between the certification of interlocutory orders, pursuant to 28 U.S.C. § 1292(b), and reconsideration of non-final orders, under Federal Rule of Civil Procedure 54(b). I also consider, but do not decide, on this sparse record, whether a plaintiff is entitled to recover prejudgment interest under New Jersey law while a case has been administratively stayed to allow the parties to pursue alternative dispute resolution.

Currently before this Court are three motions in this protracted and hotly contested litigation between Plaintiff, Electric Mobility Corporation ("Electric Mobility"), a manufacturer of electronic scooters and wheelchairs, and Defendants, Bourns Sensors/Controls, Inc. and Hall-Mark Electronics, Inc. ("Defendants"), the manufacturer and distributor of potentiometers, components of Electric Mobility's machines. Specifically, Electric Mobility has moved, pursuant to 28 U.S.C. § 1292(b), for certification of Judge Bassler's Order of January 8, 1992, which, among other things, granted summary judgment on Electric Mobility's claim under the New Jersey Consumer Fraud Act, and my Order of October 30, 1998, which denied Electric Mobility's motion for leave to amend its First Amended Complaint to add an additional plaintiff. See Notice of Plaintiff's Motion for Certification of the Court's Order of January 8, 1992 and October 30, 1998 (filed July 1, 1999). Defendants also have moved for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), on portions of Electric Mobility's claims for prejudgment interest and out-of-pocket expenses. See Notices of Motion (filed July 30, 1999). For the reasons set forth below, I shall deny Electric Mobility's motion for certification and order the parties to brief: (1) whether this Court should reconsider, pursuant to Federal Rule of Civil Procedure 54(b), the New Jersey Consumer Fraud Act issue decided by the January 8, 1992 Order entered by my colleague, Judge Bassler; and (2) if so, whether this Court should vacate Judge Bassler's Order granting partial summary judgment. Furthermore, I shall deny the Defendants' motion for partial summary judgment on Electric Mobility's prejudgment interest claim without prejudice and grant in part and deny in part its partial summary judgment motion on Electric Mobility's out-of-pocket expense claim.

I. PROCEDURAL HISTORY

The facts of this nine-year-old saga have been articulated in each of the various Opinions and Orders filed in this case. Consequently, the following recitation merely sets forth the factual and procedural history relevant to the three motions described above.

Electric Mobility purchased Bourns potentiometers for its motorized wheelchairs and scooters through Hall-Mark Electronics, Inc. See Br. in Supp. of Pl.'s Mot. for Certif. ("Pl.'s Certif. Br.") at 1. Subsequently, both Bourns and Electric Mobility discovered problems with the potentiometers. See id. Unable to resolve its differences with Bourns and the distributor, Hall-Mark Electronics, Inc., Electric Mobility sought legal redress in this Court. See Complaint (filed July 20, 1990).

In its First Amended Complaint, filed September 17, 1990, Electric Mobility alleged that, in supplying sub-standard potentiometers, the Defendants: (1) breached express and implied warranties of merchantability and fitness for a particular purpose (Count I); (2) violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2 (Count II); and (3) supplied and manufactured latently defective potentiometers (Count III). See First Amended Complaint at 2-7 (filed September 17, 1990). On January 8, 1992, my colleague, the Hon. William G. Bassler, to whom this case was then assigned, filed an unpublished Opinion and Order granting, among other things, the Defendants' motion for summary judgment on Count II of the First Amended Complaint, finding the New Jersey Consumer Fraud Act inapplicable to the facts of this case. See Electric Mobility Corp. v. Bourns Sensors/Controls, Inc., et al., No. 90-2844 at 24 (D.N.J. filed Jan. 9, 1992).

Subsequently, on April 13, 1992, Judge Bassler administratively terminated the case, based upon the desire of both parties to stay the litigation and "to engage in a private alternative dispute resolution process. . . ." See Order for Administrative Termination at 1 (filed April 13, 1992); see also Aff. of Thomas G. Carruthers on Electric Mobility's Prejudgment Interest Claim ("Carruthers Prejudgment Interest Aff."), Ex. A. More than five years later, on April 29, 1997, Electric Mobility moved to vacate Judge Bassler's Order and to reopen the case for further proceedings. See Notice of Motion (filed April 29, 1997); see also Carruthers Prejudgment Interest Aff., Ex. B. I granted Electric Mobility's motion on June 6, 1997. See Order Reopening Case for Further Proceedings at 4 (filed June 6, 1997); see also Carruthers Prejudgment Interest Aff., Ex. C, at 1-4.

On September 21, 1998, Electric Mobility moved for leave to file a Second Amended Complaint in order to add Dignified Products Corporation ("DPC") as a plaintiff in this case. On October 30, 1998, I heard oral argument and in a bench opinion denied Electric Mobility's motion as futile because it did not relate back to the filing of Electric Mobility's First Amended Complaint. See Tr. of Oct. 30, 1998 Proceedings (filed Nov. 18, 1998); Order (filed Oct. 30, 1998). Subsequently, I denied a motion for reargument of my Order denying Electric Mobility's motion for leave to file a Second Amended Complaint. See Electric Mobility Corp. v. Bourns Sensors/Controls, Inc., et al., No. 90-2844 at 2-7 (filed Nov. 20, 1998).

More than eight months later, Electric Mobility moved before this Court for certification to the United States Court of Appeals for the Third Circuit of this Court's Order of October 20, 1998, denying Electric Mobility's motion for leave to file a Second Amended Complaint, and Judge Bassler's January 8, 1992 Order granting the Defendants' summary judgment motion on Electric Mobility's New Jersey Consumer Fraud Act claim set forth in the First Amended Complaint. See Notice of Motion (filed July 1, 1999).

Later that month, on July 30, 1999, the Defendants filed two motions for partial summary judgment, arguing that, as a matter of law, they are neither liable for the portion of Electric Mobility's requested prejudgment interest covering the five-year period from April 13, 1992 to June 6, 1997, when this case was administratively stayed, nor for Electric Mobility's out-of-pocket expenses incurred before January 20, 1989 and after May 1, 1990. See Notices of Motion (filed July 30, 1999).

II. ELECTRIC MOBILITY'S MOTION FOR CERTIFICATION

The granting of certification or orders for interlocutory appeal is governed by 28 U.S.C. § 1292(b) which provides:

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)(1993) (emphasis in original).

Accordingly, the Court may certify an order for interlocutory appeal where the District Court finds that: (1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion as to that controlling question of law; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. See id.; see also Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974). The granting or denial of certification of an order for interlocutory appeal lies largely in the discretion of the District Judge. See Ferraro v. Secretary of the United States Dep't of Health and Human Serv., 780 F. Supp. 978, 979 (S.D.N Y 1992); see also 16 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure, § 3929, at 371 (1996) n. 27 (citing S. Rep. 2434, 85th Cong., 2d Sess., 1958, in 1958 U.S.C.C.A.N. 5255, 5257 ("[T]he appeal is discretionary rather than a matter of right. It is discretionary in the first instance with the district judge.")). It is well-settled that certification is inappropriate where the movant merely disagrees with an adverse ruling of the District Court. See Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996) (Orlofsky, J.) (citing Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 282 (E.D.Pa. 1983); United States v. Grand Trunk Western R.R., 95 F.R.D. 463, 471 (W.D.Mich. 1981)).

In support of its motion for certification, Electric Mobility argues that Judge Bassler's Order of January 8, 1992 and my Order of October 30, 1998 meet the three statutory criteria set forth in 28 U.S.C. § 1292(b). See Pl.'s Certif. Br. at 1-14. The Defendants disagree, arguing that in each instance, there is no difference of opinion on the controlling questions of law and immediate appeal will not materially advance the ultimate termination of the litigation. See Mem. of Law of Defs. In Opp. to Pl.'s Mot. for Certif. ("Defs.' Certif. Mem.") at 3-11. For the reasons set forth below, I shall deny the motion for certification with respect to both Orders.

On October 30, 1998, in a bench opinion, following oral argument on the merits of Electric Mobility's motion for leave to file a second amended complaint, I relied upon Nelson v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995), to find that the lost profits claim of DPC, the proposed additional plaintiff, did not relate back to the First Amended Complaint and, therefore, was barred by the applicable statute of limitations. See Tr. at 41-43 (Oct. 30, 1998). Moreover, based upon the clear language of Nelson, I rejected Electric Mobility's argument that DPC was the real party in interest under Federal Rule of Civil Procedure 17(a). See id. at 43-44. Accordingly, ...


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