Court of Appeals of Washington,

Division 1.

Dorothy NARRANCE, Appellant,

v.

BALL METAL BEVERAGE CONTAINER CORP., Respondent.

No. 63399-6-I.

 

April 5, 2010.

 

UNPUBLISHED OPINION

 

SCHINDLER, C.J.

 

Dorothy Narrance works as a truck driver for Gardner Trucking Inc. While inspecting a load at Ball Metal Beverage Container Corporation (Ball), Narrance fell while walking on an ungraded area of natural vegetation and injured her ankle. Narrance sued Ball for negligence. Because Narrance failed to present any admissible evidence that the natural vegetation was unreasonably dangerous or that Ball knew or should have known of an unsafe condition, we affirm summary judgment dismissal of her lawsuit.

 

FACTS

 

In 2007, Ball Metal Beverage Container Corporation (Ball) owned and operated a beverage can manufacturing plant in Kent, Washington. Dorothy Narrance is employed by Gardner Trucking, Inc. as a truck driver. Gardner is an independent contractor. Ball contracted with Gardner Trucking, Inc. (Gardner) to pick up and deliver trailers from a loading area at the plant to a number of beverage producers in the Pacific Northwest.

 

The Ball plant contained the manufacturing facilities, several loading docks, and more than an acre of tarmac where the trucks could access the loading docks. A smaller area of grass, with brush and other natural vegetation was located along the curb on the eastern side of the asphalt tarmac. The semi-trailers were parked either at the loading docks or across from the loading docks along the east curb at the edge of the tarmac near the grassy area.

 

When a Gardner truck driver arrived at the Ball plant, the driver would receive an assignment to pick up a trailer. The driver would then connect the trailer to the truck, inspect the load at the back of the trailer, and place a security seal on the trailer doors before leaving the plant. If the trailer was located at a loading dock, the driver would pull the trailer forward before inspecting the load. If the trailer was parked along the east curb, instead of pulling the truck forward, the driver would usually walk on the ungraded grassy area to inspect the load.

 

Narrance arrived at the Ball plant at around 1:45 a.m. on September 5, 2007. Narrance backed her truck up to a trailer parked against the curb on the east side of the tarmac. As she had done many times before, Narrance walked on the grassy area at the back of the trailer to inspect the load. Narrance said that when her right foot went into a small hole that was obscured by vegetation, she fell and injured her ankle.

 

Narrance filed a complaint for damages against Ball alleging that Ball negligently “created and failed to correct the hazards that existed in the grassy area.”

 

Ball filed a motion for summary judgment. Ball argued that it was not negligent and did not breach its duty of care to Narrance because the dangers of walking on a natural ungraded area in the middle of the night were known and obvious. In support of the motion for summary judgment, Ball submitted photographs of the loading area and portions of Narrance’s deposition.

 

In her deposition, Narrance admitted that the grassy area was not “manicured like the front lawn” and that she could have driven the truck and trailer forward to inspect the load. Narrance also testified that “she had walked on the grassy areas many times.”

 

Q. Okay. And had you done that before? Walked on the grass before?

 

A. Yes.

 

Q. How many times would you estimate you had done that before September 5 of 2007?

 

A. Many.

 

Q. Okay. And you knew it was a grassy, sort of natural area, right?

 

A. Yes.

 

Q. Okay. And were you in-do you remember, in your experience, from time to time the grass would be cut?

 

A. Yes.

 

Q. And when did you walk back there, tell me about the surface you walked on. Was it even? Was it flat?

 

MR. WILLIAMSON: Hang on. I’m going to object to the form. I don’t know if you mean that day or in general because-

 

Q. In general.

 

A. The grass, it was normal-just normal yard. I walked around back there many times before that.

 

Q. Okay. Was there any slope to it, or was it pretty flat?

 

A. By our trailers, it was flat.

 

Q. Okay. Was it an even surface, you know-

 

A. Just like a normal yard.

 

Q. Okay. But maybe not like as smooth as a golf fairway, but maybe like-what would you compare it to?

 

A. Just a normal-normal area.

 

Q. Okay.

 

A. It wasn’t manicured like the front lawn.

 

In opposition to summary judgment, Narrance argued the risk of injury was foreseeable and Ball failed to exercise reasonable care to protect the truck drivers from injury. Narrance submitted her deposition testimony that the area was poorly lit and that she believed the hole was created when electrical conduit to a nearby light pole was installed. Narrance also submitted a declaration from Gardner’s lead night driver Forest McMullen. McMullen testified that drivers routinely walked on the grassy area in order to verify and inspect a load.

 

Narrance also submitted similar testimony from another driver.

 

The trailers would be parked either against the loading dock or, more often, backed up against the curb along the grassy area across from the dock, such that the ends of the trailers would jet out onto a grassy area behind the curb. Based on their assignment, each driver would then connect his or her tractor to their designated trailer.

 

In order for a driver to verify his or her load in a trailer that was backed up to the loading dock, it would be necessary to move the entire tractor and trailer forward, then walk to the back of the trailer, open the doors of it, inspect the load, then close the doors and seal it. In order for a driver to perform the same task with respect to the trailers that were backed up against the curb next to the grassy area, it was not necessary, except in rare circumstances, for them to move their tractor and trailer rig forward so that they could then access the doors at the rear of the trailer.

 

Occasionally, but rarely, trailers might be parked so close together that a driver could not comfortably walk between the two and get to the rear of the trailer to inspect the load. In those instances the driver might pull his or her tractor and trailer forward in order to access the rear doors. When I first began to work at Ball Metal Beverage, there was no requirement that drivers pull their trailers and tractors forward if they were parked next to the curb and grassy area before opening the rear doors to inspect their load. Drivers routinely walked out onto the grassy area in order to open the rear doors for inspection purposes.

 

The court granted Ball’s motion for summary judgment. Narrance appeals.

 

ANALYSIS

 

Narrance argues that the court erred in granting summary judgment because Ball did not present evidence that the dangers of walking on the grassy area were obvious and there are material issues of fact as to whether Ball knew or should have known of the dangerous condition.

 

A defendant can move for summary judgment by showing that there is an absence of evidence to support the plaintiff’s case. Young v. Key Pharm., Inc., 112 Wash.2d 216, 225-26 n. 1, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). If the defendant shows an absence of evidence to establish the plaintiff’s case, the burden then shifts to the plaintiff to set forth specific facts showing a genuine issue of material fact for trial. Young, 112 Wash.2d at 225, 770 P.2d 182.

 

While we construe all evidence and reasonable inferences in the light most favorable to the nonmoving party, if the plaintiff “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” summary judgment is proper. Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002); Young, 112 Wash.2d at 225, 770 P.2d 182 (quoting Celotex, 477 U.S. at 322).

 

The nonmoving party may not rely on speculation or “mere allegations, denials, opinions, or conclusory statements” to establish a genuine issue of material fact. Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wash.App. 736, 744, 87 P.3d 774 (2004) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 359, 753 P.2d 517 (1988)). Supporting affidavits must contain admissible evidence that is based on personal knowledge. Grimwood, 110 Wash.2d at 359, 753 P.2d 517. A party’s self-serving opinion and conclusions are insufficient to defeat a motion for summary judgment. Grimwood, 110 Wash.2d at 359-61, 753 P.2d 517.

 

To establish negligence, Narrance must prove (1) the existence of a duty, (2) breach of that duty, (3) injury, and (4) proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Soc’y, 124 Wash.2d 121, 127-28, 875 P.2d 621 (1994). The determination of whether the defendant owes a duty to the plaintiff is a question of law. Tincani, 124 Wash.2d at 128, 875 P.2d 621.

 

Here, there is no dispute that Ball owed Narrance a duty of reasonable care as an invitee. But a landowner is only liable to an invitee for physical harm caused by a dangerous condition on the land if the landowner:

 

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

 

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

 

(c) fails to exercise reasonable care to protect them against the danger.

 

Iwai v. State, 129 Wash.2d 84, 93-94, 915 P.2d 1089 (1996) (quoting Restatement (Second) of Torts § 343 (1965)). Moreover, a landowner is not generally liable to invitees for harm caused by obvious dangers. Mucsi v. Graoch Assocs. Ltd. P’ship # 12, 144 Wash.2d 847, 860, 31 P.3d 684 (2001).

 

We reject Narrance’s argument that Ball did not meet its burden of proof on summary judgment. Ball met its initial burden by showing there was no evidence to support Narrance’s claim that it knew or should have known that the grassy area created a dangerous or unsafe condition. In response, Narrance did not set forth specific facts showing there were genuine issues of material fact that Ball knew or should have known the natural grassy area created an unreasonable risk of harm. Narrance testified that she had walked on the grassy area many times before and knew that the area was an ungraded grassy area.

 

Narrance’s testimony that the hole was created when a conduit was installed to a light pole is without foundation and speculative.

 

Q: So you think that they didn’t fill-backfill the trench or the-to where they installed the electrical conduit?

 

A: They-they had some dirt in there, but not all of it, and that hole was not filled.

 

Q: Okay. So you believe that the hole that’s depicted on Exhibit-6 was-was created when this conduit was put in?

 

A: Right.

 

Q: Okay. And what’s your-the basis for your understanding of that?

 

A: Well, I laid there and thought about it and looked at it for 45 minutes.

 

Bare allegations unsupported by admissible evidence are insufficient to create a material fact. Las v. Yellow Front Stores, Inc., 66 Wash.App. 196, 198, 831 P.2d 744 (1992) (nonmoving party may not rely on “conclusory allegations, speculative statements, or argumentative assertions”).

 

And while McMullen’s testimony established that the truck drivers often walked on the grassy area to inspect the trailer load, Narrance submitted no admissible evidence showing Ball knew or should have known that the grassy area created an unsafe condition. As in Hoffstatter v. City of Seattle, 105 Wash.App. 600, 20 P.3d 1003 (2001), the evidence showed that encountering holes in an ungraded natural area with vegetation and grass would not be an uncommon condition and it is reasonable to expect the truck drivers to pay closer attention when walking on the grassy area instead of on the paved asphalt tarmac. We conclude Narrance failed to carry her burden below.

 

The cases Narrance relies on, Williamson v. Allied Group, Inc., 117 Wash.App. 451, 72 P.3d 230 (2003), and Kinney v. Space Needle Corp., 121 Wash.App. 242, 95 P.3d 918 (2004), are readily distinguished.

 

In Williamson, a tenant was injured while walking down a steep, slippery, rocky slope in order to get to her apartment. We reversed summary judgment on the grounds that the contractor owed a duty of care to the tenant with respect to the dangerous condition created by the contractor. Williamson, 117 Wash.App. at 460, 72 P.3d 230.

 

In Kinney, an employee of a fireworks display company slipped and fell from a ladder on a platform at the top of the Space Needle. Kinney, 121 Wash.App. at 250, 85 P.3d 918. This court reversed summary judgment dismissal of the lawsuit against the Space Needle Corporation ( SNC). Kinney, 121 Wash.App. at 247-49, 85 P.3d 918. The court concluded there were material issues of fact as to the SNC’s liability as a landowner. Kinney, 121 Wash.App. at 250, 85 P.3d 918. In reaching that conclusion, we relied on the testimony of several employees and an expert witness that a fall by invitees unfamiliar with working on the ladder was foreseeable because the ladder rungs were round, exposed to rain, and painted with glossy paint. Kinney, 121 Wash.App. at 250, 85 P.3d 918.

 

Here, unlike in Williamson and Kinney, Narrance did not present any admissible evidence that Ball created the alleged dangerous condition or that Ball knew or should have known that the grassy area presented an unreasonable risk of harm to invitees.

 

We affirm summary judgment dismissal of Narrance’s lawsuit against Ball.

United States District Court,

M.D. Pennsylvania.

Michelle BUTZ and Brian Butz, Plaintiffs,

v.

James SCHLEIG, Watsontown Trucking Company, John Doe I, John Doe II, and John Doe III, Defendants.

No. 4:09-CV-00673.

 

April 2, 2010.

 

MEMORANDUM

 

JAMES F. McCLURE, JR. District Judge.

 

I. Background:

 

This action began on or around January 9, 2009, when the plaintiffs, Michelle and Brian Butz, filed a complaint in the Superior Court of Monmouth County, New Jersey. In their complaint, the plaintiffs allege that Watsontown Trucking Company (“Watsontown Trucking”) and James Schleig negligently caused an accident with plaintiffs that occurred on June 4, 2008. That accident took place in Clearfield County, Pennsylvania.

 

The action was removed by defendants Watsontown Trucking and Schleig on February 20, 2009, to the United States District Court for the District of New Jersey.

 

II. Procedural History:

 

The United States District Court for the District of New Jersey (“New Jersey Court”), on March 3, 2009, issued an order, sua sponte, to show cause why the matter should not be transferred to the United States District Court for the Middle District of Pennsylvania. (Rec.Doc. No. 4). Plaintiffs filed a response to this order on March 17, 2009, and defendants Watsontown Trucking and Schleig filed a response on March 24, 2009. (Rec. Doc. Nos. 5 and 11). On April 2, 2009, the plaintiffs filed a reply brief, with exhibits, in which the plaintiffs opposed transfer of the case to the District Court for the Middle District of Pennsylvania and, in addition, sought reassignment of the action within the District of New Jersey. (Rec. Doc. Nos. 15 and 16). On April 7, 2009, the New Jersey Court issued a Memorandum Opinion, in which it granted the order to show cause and transferred the action to the United States District Court for the Middle District of Pennsylvania. (Rec. Doc. Nos. 17 and 18).

 

Defendants Watsontown Trucking and Schleig filed an answer to the plaintiffs’ complaint on March 19, 2009 (Rec.Doc. No. 8), an amended answer on March 19, 2009 (Rec.Doc. No. 9), and an additional amended answer on March 20, 2009 (Rec.Doc. No. 10)

 

On January 19, 2010, plaintiffs filed a motion, which was concurred in by defendants, for an extension of time in which to complete discovery. (Rec.Doc. No. 31). This Court granted the motion on January 25, 2010. (Rec.Doc. No. 41).

 

Also on January 19, 2010, plaintiffs filed a motion seeking the transfer of the action under 28 U.S.C. § 1404 to the District of New Jersey, with a brief in support thereof. (Rec. Doc. Nos. 32 and 34). On January 26, 2010, defendants Watsontown Trucking and Schleig filed a brief in opposition to the motion to transfer the case. (Rec.Doc. No. 42). Plaintiffs filed a reply brief on February 5, 2010. (Rec.Doc. No. 43). On February 9, 2010, we denied the motion for transfer. (Rec.Doc. No. 44). Our denial rested on the fact that we harbored substantial doubt as to whether the case could have been brought against defendant Schleig in New Jersey. We also noted that, even if the District of New Jersey could exercise personal jurisdiction over defendant Schleig, we would still conclude that transfer to the District of New Jersey under § 1404 would be improper.

 

At issue in the instant memorandum and order is plaintiffs’ “Motion for Reconsideration of Order Entered February 9, 2010 or in the Alternative for Certification Pursuant to 28 U.S.C. 1292(b),” accompanied by a brief in support. (Rec. Doc. Nos. 45 and 46). Defendants have filed a memorandum of law in opposition to plaintiffs’ motion for reconsideration (Rec.Doc. No. 47), and plaintiffs have filed a reply brief (Rec.Doc. No. 48). The motion for reconsideration is therefore ripe for disposition, and now for the following reasons we will deny the motion. (Rec.Doc. No. 45).

 

III. Discussion

 

1. Standard of Review for Motions for Reconsideration

 

A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court’s altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)); see also Pub. Interest Research Group v. Magnesium Elektron, 123 F.3d 111, 117 (3d Cir.1997). A motion for reconsideration is appropriate in instances where the court has “patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527 (M.D.Pa.1995), vacated in part on other grounds on reconsideration, 915 F.Supp. 712 (M.D.Pa.1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983)).

 

This court notes that, in the context of deciding a motion for reconsideration of an order pertaining to transfer of venue, Pennsylvania district courts have applied Max’s Seafood and Pub. Interest, though a transfer of venue order is interlocutory in nature and not a final judgment. See Akhi Raheem Muhammad v. Weis, 2009 U.S. Dist. LEXIS 94243, *3-6 (E.D.Pa. Oct. 6, 2009) (in which the district court reconsidered whether its order that dismissed all but two of the plaintiff’s claims and transferred the remaining claims against all defendants but one to the United States District Court for the Western District of Pennsylvania “was a clear error of law or would create manifest injustice” under Pub. Interest ); Shaw v. Parker Hannifin Corp., 2008 U.S. Dist. LEXIS 49541,(E.D. Pa. June 27, 2008) (in which the district court reconsidered whether its order that transferred the action to the United States District Court for the Northern District of Ohio would result in “a manifest injustice”).

 

Importantly, a motion for reconsideration may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided.   Drysdale v. Woerth, 153 F.Supp.2d 678, 682 (E.D.Pa.2001). “Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly.” Continental Cas. Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D.Pa.1995).

 

2. Plaintiffs’ Motion for Reconsideration

 

The subject of the instant memorandum and order is plaintiffs’ motion for reconsideration of our February 9, 2010 Order. (Rec.Doc. No. 45). In their brief in support, plaintiffs first argue at length as to the burden that would be placed on them if they and their experts and other witnesses were forced to travel to Williamsport, Pennsylvania, for an eventual trial. Plaintiffs also point to the fact that the only remaining issues in dispute are causation and damages, further support, they contend, for transferring this action back to the District of New Jersey under § 1404. In addition, it appears as though nearly all of the medical records relevant to the remaining issues are located in New Jersey. Plaintiffs contend that the court misunderstood material facts and assumed others in our February 9, 2010 Order and, as such, a granting of the plaintiffs’ motion for reconsideration is warranted.

 

Second, plaintiffs claim that defendant Schleig cannot contend that New Jersey lacks personal jurisdiction over him, as he waived any objection to that court’s jurisdiction. As support for this claim, the plaintiffs state that “[d]efendant Schleig raised (3) improper venue, but not (2) lack of personal jurisdiction.” (Rec. Doc. No. 46 at 25). Plaintiffs go on to argue that “defendant Schleig waived objection to the New Jersey court’s jurisdiction by challenging venue, but omitting a motion to dismiss for lack of personal jurisdiction.” Id. at 26.

 

The plaintiffs request that this court grant reconsideration and transfer the instant action to the United States District Court for the District of New Jersey. If this court were to deny the plaintiffs’ motion, they would request that this court certify our February 9, 2010 Order pursuant to 28 U.S.C. § 1292(b), for the purposes of an interlocutory appeal.

 

3. Whether the Action Could have been Brought in the District of New Jersey

 

As this court noted in its February 9, 2010 Order, a court may transfer an action only when the transferee court has the power to exercise personal jurisdiction over all defendants. See High River Ltd. Partnership v. Mylan Labs., Inc., 353 F.Supp.2d 487, 492 (M.D.Pa.2005) (Rambo, J.) (citing Sunbelt Corp. v. Noble, Denton & Assocs., 5 F.3d 28, 31 (3d Cir.1993); Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir.1970)). The issue of whether the action could have been brought in the transferee district is a threshold question. It is a plaintiff’s burden to show that the transferee court is empowered to exercise personal jurisdiction over all defendants. See High River, 353 F.Supp.2d at 493 (stating that “the moving party must demonstrate that venue, personal jurisdiction, and subject matter jurisdiction would all have been proper in the proposed transferee district”) (citing Hoffman v. Blaski, 363 U.S. 335, 343-44, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960)).

 

We remain unconvinced that the plaintiffs have demonstrated that personal jurisdiction over defendant Schleig would properly lie in the District of New Jersey. Instead of making any showing that a New Jersey court would be empowered to exercise personal jurisdiction over defendant Schleig, plaintiffs have sought to show that Schleig did not properly raise a defense based on lack of personal jurisdiction and that he in fact waived such a defense.

 

We are similarly skeptical that venue would properly lie in the District of New Jersey such that the present action could have been brought there. Pursuant to 28 U.S.C. § 1391(a):

 

A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

 

Here, for the purposes of subsection (a)(2), no events or omissions giving rise to the plaintiffs’ claims occurred in New Jersey; instead, the accident occurred in Clearfield County, in the Western District of Pennsylvania. Subsection (a)(1) is also applicable as both defendants reside in Pennsylvania; therefore, the action could have been brought in any district where either Watsontown Trucking or Schleig resides. Clearly, the Middle District of Pennsylvania is such a district, as both Watsontown Trucking and Schleig reside there for the purposes of § 1391. However, this court is unaware of any allegations that both defendants reside in New Jersey, a fact that would have allowed the plaintiffs to bring the action in the District of New Jersey under subsection (a)(2). Because there are at least two districts in Pennsylvania in which the present action might have otherwise been brought, subsection (a)(3) is inapplicable.

 

We find plaintiffs’ attempts to demonstrate waiver unavailing. In their amended answer to the plaintiffs’ complaint that was filed on March 20, 2009, the defendants stated that the New Jersey Court “lacks jurisdiction over defendants by reason of insufficiency of process and reserves the right to move at or before trial for a dismissal of the Complaint on the ground of lack of jurisdiction because of insufficiency of process and/or service, personal or subject matter jurisdiction.” (Rec. Doc. No. 10 at 6) (emphasis added). Defendants made no motion under Fed.R.Civ.P. 12(b) prior to this responsive pleading.

 

Four days later, on March 24, 2009, the defendants filed a response to the New Jersey Court’s sua sponte order to show cause. (Rec.Doc. No. 11). In that response, defendants argued that venue in the District of New Jersey was improper and that the action should be transferred to the Middle District of Pennsylvania. The defendants did not make a motion relying on improper venue under Fed.R.Civ.P. 12(b); instead, they merely responded to a sua sponte order to show cause issued by the New Jersey Court. Even so, the defendants, on numerous occasions throughout their brief, reiterated their belief that personal jurisdiction over all of the defendants did not exist.

 

See Rec. Doc. No. 11 at 3 (stating that the “U.S. District Court for the District of New Jersey has no personal jurisdiction”), at 4 (“The District of New Jersey has no personal jurisdiction over John Schleig.”), at 5 (“This Court has no personal jurisdiction over James Schleig.”).

 

The court finds it difficult to conclude, on this record, that defendant Schleig waived his Fed.R.Civ.P. 12(b) defense based upon lack of personal jurisdiction. As such, we conclude that there remains substantial doubt as to the District Court of New Jersey’s ability to exercise personal jurisdiction over defendant Schleig; therefore, we will refrain from transferring this action to the District of New Jersey.

 

Plaintiffs have attempted to show, in essence, that the present action could have been brought in the District of New Jersey because defendant Schleig failed to properly raise or waived a defense based on lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). However, even if this court were to agree with the plaintiffs that defendant Schleig did fail to properly raise, or did waive, a defense based upon lack of personal jurisdiction, it would not be clear that, for the purposes of § 1404, the plaintiffs could have brought the action in the District of New Jersey. As the United States Supreme Court has noted, “the power of a District Court under § 1404(a) to transfer an action to another district is made to depend not upon the wish or waiver of the defendant but, rather, upon whether the transferee district was one in which the action ‘might have been brought’ by the plaintiff.” Hoffman, 363 U.S. at 343-44 (1960). The Court went on to agree with the Circuit Court of Appeals for the Seventh Circuit, which has stated:

 

If when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district ‘where [the action] might have been brought.’ If he does not have that right, independently of the wishes of defendant, it is not a district ‘where it might have been brought,’ and it is immaterial that the defendant subsequently [makes himself subject, by consent, waiver of venue and personal jurisdiction defenses or otherwise, to the jurisdiction of some other forum].”

 

Id. at 344 (quoting Blaski v. Hoffman, 260 F.2d 317, 321 (7th Cir.1958); Behimer v. Sullivan, 261 F.2d 467, 469 (7th Cir.1958)). The above calls into question even the plaintiffs’ argument that because of defendant Schleig’s arguable waiver of his defense based upon lack of personal jurisdiction, the action could have been brought in the District of New Jersey and, therefore, transfer under § 1404 would be proper.

 

4. This Court’s Analysis of the § 1404 Factors

 

Because we conclude that the question of personal jurisdiction by a New Jersey court over defendant Schleig was properly addressed by our February 9, 2010 Order, we need not reconsider our analysis of the § 1404 factors in deciding whether the convenience of the parties weighs in favor of or against transfer. As we conclude that the present action could not have been brought in the District of New Jersey, which is a threshold question, the analysis of the § 1404 factors becomes irrelevant.

 

5. Whether Certification Pursuant to 28 U.S.C. § 1292(b) is Warranted

 

In the alternative, plaintiffs argue that this court’s order denying transfer to the District of New Jersey should be certified for appeal under 28 U.S.C. § 1292(b).

 

An order may be certified for interlocutory appeal by a district court pursuant to 28 U.S.C. § 1292(b) if the order: (1) involves a controlling question of law; (2) there is substantial ground for difference of opinion with respect to that question, and (3) immediate appeal may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b); Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.1974). An order should be certified under § 1292(b) by a district court only in exceptional circumstances. See Milbert v. Bison Labs., Inc., 260 F.2d 431, 433 (3d Cir.1958).

 

A “controlling question of law” is one that is “serious to the conduct of the litigation, either practically or legally,” such as whether an erroneous decision on the question “would result in a reversal of a judgment after final hearing.” Katz, 496 F.2d at 755. We fail to see how our decision not to transfer this case back to the District of New Jersey involves a controlling question of law. First, it is not clear that New Jersey law would apply if the matter were transferred back to the District of New Jersey. Harkes v. Accessory Corp., 2010 U.S. Dist. LEXIS 21748,n. 3 (D.N.J. Mar. 10, 2010) (“Similar to contract claims, when resolving choice of law disputes stemming from tort claims, New Jersey courts apply the law of the state with most significant contacts in light of the factors enumerated in § 145 of the Restatement (Second) of Conflict of Laws.”) (citing Lebegern v. Forman, 471 F.3d 424, 428 (3d Cir.2006)). Second, this court remains unconvinced that transfer would be appropriate. Plaintiffs’ have not pointed to any basis for a New Jersey court’s ability to exercise personal jurisdiction over defendant Schleig, and we do not believe that Schleig’s conduct concerning his personal jurisdiction defense could be characterized as a waiver. For these reasons, the court believes our decision denying plaintiffs’ motion for transfer to the District of New Jersey does not involve a controlling question of law.

 

Additionally, we do not believe that certification under § 1292(b) would materially advance the ultimate termination of this litigation. First, an interlocutory appeal concerning venue will not resolve any issue remaining in the instant case. Second, any such appeal will only increase the likelihood, as the defendants point out, that a stay prior to trial will be required. As such, we fail to see how certification will materially advance the ultimate termination of this litigation.

 

In light of the foregoing, the court finds that two of the three elements required for certification under § 1292(b) have not been met. Therefore, the court will deny the plaintiffs’ alternative motion for certification pursuant to § 1292(b).

 

IV. Conclusion

 

In light of the foregoing, the plaintiffs’ “Motion for Reconsideration of Order Entered February 9, 2010 or in the Alternative for Certification Pursuant to 28 U.S.C. 1292(b)” will be denied. (Rec.Doc. No. 45).

 

ORDER

 

For the reasons set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:

 

Plaintiffs’ “Motion for Reconsideration of Order Entered February 9, 2010 or in the Alternative for Certification Pursuant to 28 U.S.C. 1292(b)” is DENIED. (Rec.Doc. No. 45).