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Gault v. Thacher

United States District Court, D. South Carolina, Beaufort Division

August 15, 2019

ASHLEY SHANE GAULT, Plaintiff,
v.
JANE VADEN THACHER and VADEN OF BEAUFORT INC, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         The following matter is before the court on plaintiff Ashley Shane Gault's (“Gault”) motion for leave to file an immediate interlocutory appeal. ECF No. 35. Specifically, Gault seeks to appeal the court's prior order dismissing defendant Jane Vaden Thacher (“Thacher”) for lack of personal jurisdiction and dismissing Gault's breach of fiduciary duty cause of action for failure to state a claim. For the reasons set forth below, the court grants Gault's motion to appeal the court's dismissal of Thacher from the case and denies Gault's motion to appeal the court's dismissal of the breach of fiduciary duty claim.

         I. BACKGROUND

         Gault brought this action against Vaden of Beaufort, Inc. (“the Corporation”) and against Thacher, the President and majority shareholder of the Corporation (together, “defendants”). Gault alleges that Thacher and the Corporation engaged in a course of self-interested dealings that depleted the Corporation's assets and therefore harmed him by decreasing the value of his 10% ownership interest in the Corporation. The Corporation is incorporated under the laws of Georgia, has its headquarters in Georgia, and has its principal place of business (“PPB”) in Georgia or South Carolina. In 2011, Gault became a 10% shareholder in the Corporation and his ownership interest fully vested in 2016. Sometime after October 2017, Gault resigned.

         On October 19, 2018, Gault filed suit in the Beaufort County Court of Common Pleas and then filed an amended complaint on November 7, 2018. Gault alleged that Thacher and the Corporation engaged in a course of conduct that disadvantaged the Corporation, and thus diminished the amount of money that Gault received for this 10% stock ownership, while benefitting other businesses owned by members of Thacher's family (“Vaden Family Entities”). Defendants removed the action on November 21, 2018. On November 26, 2018, defendants filed a 12(b)(6) motion to dismiss for failure to state a claim, ECF No. 5, and a motion to dismiss defendant Thacher for lack of personal jurisdiction, ECF No. 7. On February 15, 2019, the court entered an order granting in part and denying in part the motion to dismiss for failure to state a claim and granting the motion to dismiss Thacher for lack of personal jurisdiction (“the Order”). ECF No. 25. Gault then moved the court to reconsider the Order, which the court denied on June 24, 2019. ECF No. 34. On July 8, 2019, Gault filed a motion for leave to file an immediate interlocutory appeal. ECF No. 35. Defendants filed a response in opposition on July 22, 2019, ECF No. 43, and Gault filed his reply on August 9, 2019, ECF No. 46.

         II. STANDARD

         “[28 U.S.C. § ]1292(b) provides a mechanism by which litigants can bring an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals.” Lynn v. Monarch Recovery Mgmt., Inc., 953 F.Supp.2d 612, 623 (D. Md. 2013) (quoting In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982)).

         Pursuant to 28 U.S.C. § 1292(b), an interlocutory appeal may be sought for an order that is not otherwise appealable when the district court is “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.” As such, a district court may certify an order for interlocutory appeal when: “1) such order involves a controlling question of law, 2) as to which there is substantial ground for difference of opinion, and 3) an immediate appeal from that order may materially advance the ultimate termination of the litigation.” Mun. Ass'n of S.C. v. Serv. Ins. Co., Inc., 2011 WL 13253448, at *3 (D.S.C. Sept. 21, 2011) (internal quotations omitted). All three requirements must be met. Id. In addition, Rule 54(b) of the Federal Rules of Civil Procedure permits a district court to “direct entry of a final judgment as to one or more, but fewer that all, claims” when an action involves multiple claims as long as “the court expressly determines that there is no just reason for delay.” “The burden is on the party endeavoring to obtain Rule 54(b) certification to demonstrate that the case warrants certification.” Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th Cir. 1993).

         III. DISCUSSION

         Gault asks the court to certify an interlocutory appeal of the Order pursuant to 28 U.S.C. § 1292(b) and Rule 54(b) of the Federal Rules of Civil Procedure. Specifically, Gault seeks to appeal the court's dismissal of Thacher from the case for want of personal jurisdiction and also the court's dismissal of the breach of fiduciary duty claim. The Order found that, after dismissing defendant Thacher, the breach of fiduciary duty claim could not survive against the Corporation, the sole remaining defendant, because under Georgia law, corporations do not owe a fiduciary duty to their shareholders. The court now considers whether it should certify an interlocutory appeal of either of these rulings under either Rule 54(b) or §1292.

         1. Fed.R.Civ.P. 54(b)

         Gault first seeks a certificate of appealability through Rule 54 of the Federal Rules of Civil Procedure of the court's order dismissing Thacher for lack of personal jurisdiction. Under Fed.R.Civ.P. 54(b), the court engages in a two-step inquiry to determine whether an individual claim may be appealed prior to the court's adjudication of all claims. First, the court must “determine that it is dealing with a ‘final judgment.'” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, (1980). “It must be a ‘judgment' in the sense that it is a decision upon a cognizable claim for relief, and it must be ‘final' in the sense that it is ‘an ultimate disposition of an individual claim entered in the course of a multiple claims action.'” Id. (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956)). If the court is dealing with a final judgment, then it must determine whether there is any just reason for delaying the appeal until all claims are fully adjudicated. Id. at 8. As the Supreme Court explained, “[n]ot all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims.” Id.

         Under Rule 54(b), the court's role is “to act as a ‘dispatcher.'” Curtiss-Wright Corp., 446 U.S. at 8. “It is left to the sound judicial discretion of the district court to determine the ‘appropriate time' when each final decision in a multiple claims action is ready for appeal. This discretion is to be exercised ‘in the interest of sound judicial administration.'” Id. Nevertheless, both the Supreme Court and the Fourth Circuit have recognized that Rule 54(b) certification is an exceptional procedure and should not be granted routinely. Id. at 10; Braswell Shipyards, Inc., 2 F.3d at 1335.

         Gault contends that the court's dismissal of Thacher constitutes a final judgment as to all claims against her. The court agrees. “An order dismissing a defendant for lack of personal jurisdiction is a final judgment for purposes of Rule 54(b) because it is an ultimate disposition of the claims against the dismissed defendant ...


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