When Are Motions For Certification Favored?

*This is the second in a series of posts about the certification of questions of state law.

Although the certification procedure serves structural goals such as federalism and “preserv[ing] state sovereignty,” Schering-Plough Healthcare Prods. v. NBD Bank, N.A., 98 F.3d 904, 913 (6th Cir. 1996), the Sixth Circuit’s perception of whether a movant “deserves” certification factors into the court’s decision regarding whether to certify.

First, the court looks askance at litigants who first seek certification on appeal, viewing them as indifferent to judicial economy or—arguably worse—as seeking to game the system by obtaining a “do-over.”  See BKB Props., LLC v. Suntrust Bank, 453 F. App’x 582, 588 (6th Cir. 2011) (“It is first noteworthy that [the movant] failed to request certification in the district court, thus resulting in the considerable expenditure of judicial resources by the federal courts on the issue.”); City of Columbus v. Hotels.Com, L.P., 693 F.3d 642, 654 (6th Cir. 2012) (“The appropriate time to seek certification of a state-law issue is before a District Court resolves the issue, not after receiving an unfavorable ruling.”).  Litigants who move for certification after filing appellate briefs are even worse off, viewed as having wasted both the district and appellate court’s time.  See Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447 (6th Cir. 2009) (denying motion for certification filed “well after the parties had completed briefing”); Carolina Cas. Ins. Co. v. Panther II Transp., Inc., 402 F. App’x 62 (6th Cir. 2010) (explaining that “[u]ntimeliness is itself a reason to deny the motion,” which was filed after the appellate briefs).

Second, the court disfavors motions for certification where the movant has “chosen” to litigate in federal court.  Local 219 Plumbing & Pipefitting Indus. Pension Fund v. Buck Consultants, LLC, 311 F. App’x 827, 831 (6th Cir. 2009) (denying plaintiff’s motion “based on our review of the applicable Ohio law and plaintiffs’ choice of a federal forum”); City of Columbus, 693 F.3d at 654 (denying certification in part because plaintiff filed suit in federal court); Shaheen v. Yonts, 394 F. App’x 224, 233 (6th Cir. 2010) (“One who . . . chooses the federal courts in diversity actions is in a peculiarly poor position to seek certification.” (internal quotation marks and alterations omitted)); Union Planters Bank, N.A. v. Cont’l Cas. Co., 478 F.3d 759, 767 (6th Cir. 2007) (denying certification in part because the plaintiff “chose to bring this case in a federal rather than a state forum in the first instance”).  In these cases, each movant was a plaintiff that filed suit in federal court.  Though there are no Sixth Circuit cases on point, the same logic ought to apply to a defendant that chose to remove a case to federal court and then moved to certify a question to the state court.  On the flip side, perhaps a plaintiff who “sought to obtain a ruling in state court” and was “thwarted” by removal ought to be viewed more favorably when requesting certification.  See Real Estate Bar Ass’n for Mass., Inc. v. Nat’l Real Estate Info. Servs., 608 F.3d 110, 119 n. 2 (1st Cir. 2010).

Parties should consider these issues when moving for (or opposing) certification of a question of state law.  If a case is likely to turn on an unresolved issue of state law, litigants should keep the certification option in mind from the very beginning of a case to put themselves in the most favorable position to have a motion for certification granted.