Rutherford v. Columbia Gas

request included a for a declaratory judg- ROGERS, Before: CLAY and Circuit defining easement, ment its permitting it Judges; JORDAN, District Judge.* trees, to remove the and finding Ruther- ROGERS, J., opinion delivered the ford liable for various damages; a claim court, JORDAN, D.J., in which joined. injunctive relief; for a claim for damages CLAY, 620), (p. J. a separate delivered for breach of contract property rights; opinion concurring part dissenting a claim punitive damages; for and a claim part. attorney fees and costs. * Jordan, see, The Honorable R. Leon sitting by designation. Senior Dis- Judge trict of the Eastern District of Tennes- statements). All of Columbia’s risdictional findings various made magistrate counterclaims, for de- including request its explicitly of law

fact and conclusions relief, therefore considered claratory claims. of Rutherford’s rejected each We thus have prejudice. dismissed with However, did not address magistrate magistrate’s the re- jurisdiction to review counter- then-still-pending Columbia’s claims for relief. Nevertheless, jection of Rutherford’s magistrate di- the claims. for judgment enter the clerk to rected largely controlled These claims are Ruth- findings, on the based Columbia in Andrews v. Co by our recent decision from the appeal notice of filed a erford Corp., 544 F.3d Transmission lumbia Gas not final though it was even judgment, (6th Cir.2008). the upheld There we all claims be- it did not resolve because against Colum rejection of similar claims 54(b). Fed.R.Civ.P. parties. tween the from its easement removing for trees bia supple- parties directed the After we id. at 621-22. across Andrews’s land. See inadequate jurisdictional brief- ment their Rutherford, requested had Like Andrews parties problem, this the ing and address injunctive protect relief to declaratory and court to amend evidently asked the district in Id. at 622. As trees on the easement. an magistrate entered judgment. the The case, rejected magistrate the Rutherford’s Tunc En- “Nunc Pro Order order entitled laches, claims of es Andrews’s Ohio law try order reiterates Judgment.” The at 622-23. And as toppel, and waiver. Id. judgment, without previously the entered case, magistrate in he did Rutherford’s declaratory judgment explanation adds tree remov planned that Columbia’s found each right way of 25 feet on finding the terms of the al was consistent with and dismisses Colum- pipelines, side Rutherford offers little to easement. Id. bia’s other counterclaims. judgment case from the distinguish her affirmed in Andrews. magistrate did not seek leave 60(a) brief, to correct reply under Fed.R.Civ.P. Rutherford ar her in appeal distinguish an was docketed An judgment gues while that the court should court, an hardly likely it is clear that Rutherford’s trees this drews because mid-1950s, judgment new relief to a in the around planted order that adds had been scope predecessor the time Columbia’s obtained be a correction within could 60(a). of the easements at issue. The ques But resolution of that the last Rule not exist at the time of necessary argu at oral Andrews trees did tion is not because it of the easements issue explicitly stated creation ment Columbia argues Rutherford all of its claims that case. Id. 625. willing relinquish was ju gas company fact that the allowed appellate to ensure for relief order property to remain on the encourage we do not small trees risdiction. While gas the second line shows procedure, enough permit it is the when installed this contemplated allowing jurisdiction parties appellate exercise of Perez, grow on the easement. But Scarbrough large trees to case. See (6th Cir.1989); construing express easement with G.G. Marck 1081-82 dimensions, Assocs., the court considers Peng, Fed.Appx. unclear & Inc. v. (6th Cir.2009); surrounding” but see Smoot “circumstances 931-32 easement, Am., Inc., but also “what is creation of the v. Mazda Motors of (7th Cir.2006) (both reasonably necessary and convenient parties which the easement why purposes counsel serve the ordered to show cause their at 624 and cases ju- granted.” was See id. not be sanctioned for deficient should if circum- measurably cited therein. Thus even unless Ohio law has changed surrounding Stores, the creation of the in the meantime.” Big stances Lots Inc. v. Care, Ltd., N’ marginally different the Luv 302 Fed.Appx. easements (6th Cir.2008). cases, developed Rutherford no two The Tenth Circuit has ex- magistrate’s plained: as to how the find- argument right way reason-

ing that cleared controlling Where no state decision ex- ably necessary distinguishable from the ists, the attempt federal court must finding upheld Andrews. See id. similar predict what the state’s at 626-30. would do. In performing this ventrilo- function, however, quial the federal

Because in Andrews we an indis- upheld by ordinary court is bound principles of tinguishable finding factual that a cleared Thus, stare decisis. when a of way reasonably necessary right of this Court has rendered a decision inter- easement, purpose serve the we law, preting state that interpretation is uphold magistrate’s finding that on binding circuit, district courts in this this case that Columbia clear trees Court, and on panels of this from Rutherford’s easement. And clear- intervening unless an decision of the right way even a 15-foot of on each state’s court has resolved the pipelines require side of the would issue. removal of the seven trees at issue here. Wankier v. Equip. Corp., Crown Thus, F.3d Rutherford is not entitled to relief (10th Cir.2003). As no Ohio court any of her claims. suggested has that misapplied Andrews Rutherford also contests contrary Ohio law or reached a holding, magistrate’s holding equitable that various holding laches, Andrews’s estoppel, apply doctrines do not to express ease and waiver do not to expressly ments as a matter of Ohio law. But when granted easements controls this case. See pressed point on this at oral argument, her Andrews, 544 F.3d at 630-31. counsel conceded that identical Andrews’s That conclusion is sufficient to re controls, holding merely and counsel invit Moreover, solve this case. we decline to ed us to “reconsider” A pub Andrews. exercise our certify questions discretion to prior panel lished decision “remains con of state law to the Ohio Court. trolling authority unless an inconsistent First, party no requested has certification decision of the United States any stage Second, litigation. of this requires modification of decision certification is not warranted because it or en this Court banc overrules the arguably would be inconsistent with the prior Sec’y decision.” Salmi v. Health of Andrews court’s determination not to seek (6th Servs., & Human Third, sponte. such certification sua Cir.1985). banc, taking a Without case en suggest available evidence does not “panel prior cannot” reconsider a pub the Ohio Supreme likely Court is to dis interpreted lished case that “ab agree with interpretation Andrews’s of sent an indication courts [state] Ohio law. they would have decided prior [the differently.” Corp. Blaine Constr. At the parties’ request, case] we consider the Am., (6th N. Ins. Co. purported pro district court’s nunc tunc of Cir.1999). Or, recently as stated a order as a confirmation that Columbia case, agreed are bound of “[w]e [a dismissal its counter- published case that interpreted appealed law] Ohio claims. Because the order from express grant created on her easement Rutherford relief denied

properly of subject equitable doctrines claims, affirm. waiver, laches, no estoppel. There is CLAY, concurring part Judge, Circuit Appeals of held doubt that the Ohio Court dissenting part. ac “equity does not in Lone Star such an knowledge extinguishment of much of the agree I with Although granted] easement recourse [expressly disagree with the majority’s reasoning, *7, laches.” Id. at estoppel or that, least with notion However, 3146, at *19. App. LEXIS Ohio equita- regarding the Rutherford’s claims highest court has not con where a state’s waiver, laches, and es- ble doctrines issue, clusively ruled on an the decisions requires us blind- toppel, stare courts, although enti intermediate state to our decision Andrews ly defer “ “ ” weight,’ are ‘not control tled to ‘some Corp., 544 Transmission Columbia Gas ” Internal Revenue v. Es ling.’ Comm’r Cir.2008). An- Because F.3d 618 Bosch, tate drews, law with re- determining Ohio (quoting King 18 L.Ed.2d 886 equita- application of these spect to Travelers, 153, 160-61, v. Order of doctrines, an intermediate relied on ble (1948)). 488, In 92 L.Ed. 608 decision to the ex- appellate stead, federal courts that the of evidence clusion “predict” how the state’s are would reach Supreme Court of Ohio to ‘all highest “by looking court would rule conclusion, obligation different ” Prestige Cas. Co. v. Mich. available data.’ state law con- properly determine Ohio (6th Co., 1340, Mut. Ins. obligation and flicts with Assoc, Cir.1996) (quoting Kingsley v. Moll unique cir- these follow Andrews. Under Inc., 498, PlastiCrafters, cumstances, balance of interests the Cir.1995)). Accordingly, holding while the certify suggests that we should strongly per provides presumptively of Lone Star of Ohio Supreme to the Court law,” ascertaining state suasive “datum for proper scope of seeking input its on the holding if may disregard that law. There- these doctrines under Ohio that by persuasive “convinced other data fore, the respectfully dissent as to res- the court of the state would decide equitable olution of Rutherford’s claims. Co., otherwise.” v. Am. Tel. & Tel. West 227, 179, 85 L.Ed. I. (1940). magis- decision in like the Our case, very per- A of Ohio reveals judge’s trate decision in this relied review law of exclusively Supreme suasive “data” almost Ohio Court accept the rule of Lone Ohio would Appeals’ decision Lone Star Steakhouse Ohio, ap- has Ryska, No.2003- Star. The Court of Ohio & Saloon Inc. v. 1538259, *7, in the con- L-192, plied equitable 2005 Ohio- these doctrines 2005 WL (Ohio see, contracts, e.g., Ct.App. at *17 text of other written App. LEXIS Co., that, 30, 2005), Aetna Ins. 23 Ohio unlike an Pedler v. June to conclude Life (1986)1 (ap- an St.3d 490 N.E.2d by prescription, obtained easement Pedler, ineligibility,” holding outlining Supreme Court of Ohio ulti- material his 1. In specifical- appellee mately could be de- failure of "[t]he found that the claimant coverage ly note the limitation on the face of certifi- based on information con- nied sufficient, alone, standing estop summary” "plan and "other cate is not tained in the equitable estop- by prescription” subject tained plying “principles to the contract, insurance and pel” to written doctrine of estoppel, nothing laches and estopped from holding that “an insurer opinion suggests the Zimmerman that this coverage denying the full value of stated is the context in which those doc- certificate, upon insurance based on the apply. trines If anything, Zimmerman or exclusions contained in the limitations seems to imply equitable these doc- policy, master where the insured bar- trines to all easements. Id. coverage, such unless gained paid (discussing equitable estoppel doctrine of the insured knew or should have known of easement,” in the context of “an and ap- ineligibility”), interpreted and has his parently referring original easement right-of-way agreements according prin- at issue in the case express which was “an ciples of contract see Alexander v. easement created an instrument ... Co., Buckeye Line Pipe Ohio St.2d recorded”). duly Lone StaPs narrow Moreover, in 374 N.E.2d reading of Zimmerman also is belied considering regarding alleged claims the fact decisions other way a right interference with created Ohio Appeals Courts of have held that express agreement adjacent between express subject easements are to the doc- landowners, Court of Ohio trine of abandonment. 1st Nat’l expressly rejected the notion that “a LLC, Bank v. Agency, Mt. 2009 WL plaintiffs remedy should be at law and not 1278429, *6, 2009 Ohio App. LEXIS equity,” recognizing equitable reme- (Ohio 2009). at *13 Ct.App. May may provide proper dies “the mode of To the extent that there is a conflict enforcing agreement.” Goldberger the v. Star, between Zimmerman and Lone 82, Bexley 5 Properties, Ohio St.3d 448 would be the apply earlier rule (1983). 1380, Although N.E.2d 1383 not of Zimmerman. See Sowards v. Loudon speaking applicability of the doc- Tenn., 426, County, 203 F.3d 431 n. 1 estoppel specifically, trine of laches and Cir.2000). That especially true here Goldberger recognized equitable that other given that purports Lone Star the doctrines, such as unclean hands and ad- Zimmerman, rule set forth in and also possession, apply equal verse with force in characterizes Zimmerman as “the leading express the context of easements. Id. Our authority extinguishment Ohio on the of any decision Andrews did not consider via estoppel easements the doctrines of in determining of these decisions that the Star, and laches.” See Lone 2005 WL Supreme Court of Ohio would accept the 1538259, *7, 3146, App. 2005 Ohio LEXIS rule announced Lone Star. at *18-19. Furthermore, the rule announced in addition, although predicated

Lone seems to be on a the law of other Star here, states does not dictate the misreading fundamental of Zimmerman v. result Cindle, See, 164, App.3d inquiry. e.g., 48 Ohio relevant to our 548 N.E.2d Herman Miller, Although syllabus 1315 the Inc. v. Imps. Exps., Palazzetti & Inc., (6th Cir.2001) (“In 298, Zimmerman states that “an easement ob- coverage ultimately the denial of where the insured had the court determined that acquiring knowledge prevail the means of of the limi- claimant could that claim reaching tation.” 490 N.E.2d at 608. In that should not distract us from the critical fact conclusion, however, recognized Court of that the court that doctrine of subjected equitable estoppel applies equal Ohio a written insurance contract to with force to equitable inquiry. estoppel The fact that written contracts. express in the context of ease- Michigan doctrines [regarding our decision reaching error, by likely law], influenced the number ments. Because of this we are also post-mor majority’s recognized disagree that have with the conclusion of states To that limited publicity.”). of right tem no choice but to resolve we have extent, then, to note that important it is by reference to the Rutherford’s claims express recognized have states other approach rule set forth Andrews. The subject equitable are to these easements by majority glosses over the endorsed Leisinger, v. Jewett doctrines. shortcomings inquiry of our (Fla.Dist.Ct.App. 655 So.2d compounds in fact the error lend- 1995); Corp. v. Davi Casting Die Crew’s approach. to such an ing credence dow, 541, 120 N.W.2d 369 Mich. (1963); v. Twp. Piscataway also see of II. (3d 203, 214 Energy, 488 F.3d

Duke majority, According to the law). 2007) At Jersey New (applying no “bound” to follow Andrews because in minimum, these decisions demonstrate tervening Ohio state court decision “has inherently unique nothing there is suggested misapplied that Andrews Ohio expressly granted easement such about an contrary holding.” Maj. law or reached a necessarily rights created therein Constr. Op. (citing Corp. at 618-19 Blaine equity. Nor preclude considerations Am., N. v. Ins. Co. F.3d given such a limitation make sense would (6th Cir.1999), Stores, Inc. Big Lots v. applied the Court has Care, Ltd., App’x N’ 302 F. Luv to land claims between doctrine of laches (6th Cir.2008)). Underlying majority’s right where a state’s “title and the states position is the notion that stare decisis authority” disputed territory ful is at imposes important obligation on us an Kentucky, issue. See Ohio and abide the decisions handed 35 L.Ed.2d 560 (“ by prior of this Court. See rule, panels down long-settled ‘The and never doubt Park, court, City long acquiescence ed is that Darrah Oak (6th Cir.2001). territory one A of cir possession number conclusion, another and in the exercise of sover cuits have reached a similar eignty and dominion over it is conclusive of reasoning that “applies stare decisis with ” rightful authority.’ the latter’s title and equal force cases which state law Wisconsin, (quoting Michigan v. 270 U.S. decision,” supplies the substantive rule 295, 308, 46 70 L.Ed. 595 Co., Transp. Broussard v. S. Pac. York, (1926))); Massachusetts New (5th Cir.1982) (en banc), 65, 95, U.S. 46 S.Ct. 70 L.Ed. 838 panel that a holding prior thus decision (1926) (“Long acquiescence posses in the panels “should be followed other with territory sion of and the exercise of domin regard any alleged existing out confu sovereignty ion and over it have a law, subsequent sion in state absent a state in the of a controlling effect determination statutory court decision or amendment disputed boundary.”). (prior) which makes this Court’s decision clearly wrong,” Lee v. Frozen Food Ex

Despite evidence that the Inc., press, Cir. holding of Lone not an accurate Star is 1979) curiam); Woodling v. law, (per accord statement of Ohio our decision in An- (2d Corp., F.2d exclusively on Lone Garrett drews relied almost 1987) (“A ruling panel of one of this determining pre- law Circuit Star Ohio normally application equitable of these on an issue of state law will cludes panel another a consistency order, be reconsidered absent the sake of courts decision of a state court or of prior should follow decisions regarding the tending points to cast doubt on that same this Circuit of law. But stare decisis “is ” ruling.”). not an ‘inexorable command.’ Planned Casey, 833, 854, Parenthood v. majority recognize, fails to What (1992) 120 L.Ed.2d 674 however, certifying question is that a to a (quoting Burnet v. Coronado Oil & Gas implicate, state court does not much less Co., 393, 405, contradict, obligations our under stare de- J., (Brandeis, L.Ed. 815 dissent certify question a cisis. Wdien we a Rather, ing)). determining whether to fol court, are not modifying, over- past low precedent requires an exercise of turning, refusing or otherwise to follow “judgment” that customarily “is informed Rather, prior precedent. seeking we are by a prudential series of and pragmatic guidance from a court to which we are designed considerations to test the consis bound to defer on issues of state law. tency overruling prior a decision with Certifying question regarding Ohio law the ideal of the rule of and to gauge highest to Ohio’s thus does not run the respective costs of reaffirming and implicate counter to or even whatever obli- overruling prior case.” Id. most gations we have to follow cases, usually stare decisis “is the wise merely judicial manage- reflects sound policy, because in most matters it is more ment. important applicable rule of law a wrongly Confronted with decided be settled than that it right.” be settled decision, option normally our Burnet, 52 S.Ct. 443 would be to follow that decision and en- (Brandéis, J., dissenting). In certain cir courage the en banc Sixth Circuit or Su- cumstances, however, the balance of inter preme to reconsider the issue. In a shifted, responsibility ests is and our this, however, diversity case such as right” make sure that issue is “settled option certifying have the additional important is more than the benefits of court, to the state’s letting merely the issue remain “settled.” least where that court’s rules make the cases, In such the considerations that usu If procedure certification available. ally support following prior precedent rules of the Court of Ohio did not give way competing to other inter available, make the certification procedure ests. This is one of those circumstances. agree then I would that we would be bound Andrews. But because the certi- Where, here, jurisdiction such as here, option fication is available and in predicated diversity on the of parties, we stake, light of the at interests believe apply to in resolving state law compelled that we are to exercise our dis- presented. the substantive issues provide Supreme cretion and Court of 64, 78, R.R. Tompkins, Erie 58 opportunity Ohio an to address this issue. (1938). L.Ed. S.Ct. In fulfill- ing obligation, that are required to

A. applicable determine what fact is the The duty properly doctrine of stare decisis et non state law. Our determine quieta meaning “to stand a responsibility state law is serious that movere— decided, things implicates principles and not to disturb settled at least as (7th fact, points,” Dictionary 1414 underlying Black’s Law as those stare decisis. ed.1999) that, principle “pragmatic for unlike the considerations” un- —reflects that decisis, requirements,” acknowledging but Casey, 505 U.S. law see

derlying stare imposes interpretations may on be disre- prior Erie federal S.Ct. “great[] re- “duty” “prior and court decisions garded federal courts where state state determine properly inadvertently sponsibility” had been overlooked Haven, Meredith v. Winter see appeals”). court of pertinent 228, 234, 88 L.Ed. arising under our In all cases B. “adjudi- that we jurisdiction, requires Eñe competing consid- Confronted with these parties with the aid rights cate the erations, majority the issue resolves by the mate- light was afforded of such as operates suggesting stare hand, and in accor- for decision at rials merely prudential case not as a applicable principles with the dance consideration, binding but as a pragmatic determining state law.” Id. words, according In other rule. from which obligation 7. This is an majority, just that we would “usu- Supreme may not shrink. As the ally defer” to as was the ease “diversity jurisdic- emphasized, Court Maness, so. required for the benefit of but that we are to do tion was not conferred to serve their conven- the federal courts or majority’s have position does some ience,” adopted by Con- but rather was in that our appeal, superficially, at least gress opportunity “to afford to suitors reported panel law that prior case dictates cases, option, to assert in such at their binding decisions are on all than in rights their in the federal rather panels “unless an inconsistent decision of 7. courts.” Id. at the state requires the United States cases, “duty” properly In certain our modification the decision or this Court state law comes into determine prior en overrules the deci banc normally conflict with the interests Hu Sec’y sion.” Salmi v. Health & support deferring prior prec would Servs., man cases, edent. In such some courts have 1985). provide rules Even this Court’s recognized obligation properly “[r]eported panel opinions are bind important determine state law is more Thus, subsequent panels. no sub general than the dictate to defer to sequent panel published opin overrules precedent construing federal state law. 206(c). R. previous panel.” ion of a 6 Cir. Maness, See United States v. “binding” implicated But this rule is not (6th Cir.1994) (refusing to follow certifying of Ohio state interpretation Fourth Circuit’s of North Court of Ohio because law the “the Fourth Carolina state law because procedure An- does not “overrule” contrary prior Circuit did not follow a drews. there be sound and While supreme though court decision” even persuasive practical not to exer- reasons usually “we would defer to the Fourth option cise the certification in certain prediction Circuit’s of an issue of first present cases—none of which are here— impression regarding North Carolina state Arts, Inc., certainly precluded doing are not from law”); Etc., v. Pro Factors Inc. Cir.1981) 206(c) (2d (em so Rule or our decisions in Sal- phasizi 652 F.2d Construction, Big or Lots. In- Blaine ng prior federal determinations of mi deed, none of these decisions even consid- state law should be followed “for the bene dynamics orderly unique fit ers whether the of cases development of both the state subject diversity jurisdiction arising law and fairness to those to state under our re- protocol tency from reliability, availability move the certification and 206(c). safety review functions as a of Rule valve that constraints allows for the vindication of the interests “binding” rule of Sal- Significantly, accuracy justice. and Adkins 206(c) important Rule includes ele- mi and Wolever, (6th 520 F.3d constraining that make it more than ments 2008) (following wrongly prior decided the traditional doctrine of stare decisis. panel “encouraging] decision but the other decisis, requirement that a Like stare members of our Court ... to revisit the reported subsequent panel follow de- banc”), banc, issue en rev’d en implicates prior panels cisions of consider- (6th Cir.2009). the potential Without consistency ations of and order. That courts, for review higher the dictates of perhaps much is obvious. What is less justice and practicality preclude would us obvious, however, this rule also from construing the deference we owe to separate includes the notion that the au- prior panel strictly decisions as binding. thority modify or a ruling reverse Burnet, 406-07, 285 U.S. at 52 S.Ct. only should in the hands of a superi- reside (Brandeis, J., dissenting) (recognizing body, or and includes as a minor premise “usually stare decisis is poli the wise unextraordinary proposition that pan- cy” consistency because and reliance inter co-equals. els within the same circuit are significant, ests are explaining but disagree do not with either this While Supreme Court has never hesitated underlying premises, major- rule or its overrule decisions where “correction ity’s applies contention this rule un- (citations practically ... impossible” yieldingly this case overlooks several omitted)).2 footnotes suggest critical factors that that this bind- However, this obligation to defer to ing operates differently rule “higher” complicated courts is when we sit cases such as this. diversity. cases, In diversity we are importantly, Most makes sense to and, therefore, state law pragmatic transform the doctrine of stare required to defer to the decisions of into a binding rule with Erie, 78-80, courts. See 304 U.S. at co-equal panels only because there are at 817; Coopers Bovee v. Lybrand & higher least two authorities —the en banc C.P.A., Cir.2001). and the Court—from which fact, federal courts oftentimes confront party a dissatisfied can seek reconsidera- questions of state law on which the highest wrongly question. tion of a decided As court of spoken, the state has not and thus suggest, our rules it makes sense to con- upon “predict” are called what state law reported panel strue “binding” decisions as would be looking to the decisions of the subsequent panels only because en banc state’s intermediate and lower courts. See always reconsideration is available to cor- Prestige, 1348; 99 F.3d at see King, also 35(a) rect mistakes. See 6 Cir. R. 160-61, (holding 206(c). the rule precluding Whereas that the decrees of “lower state courts” are subsequent panels overturning prior from “controlling” but must be “attributed reported panel promotes decisions weight”). Consequently, consis- some in addition argument pretation 2. Justice Brandéis’ is limited to is much more feasible than amend- Constitution, "involving cases the Federal Constitution” required as would be "legislative practically impos- non-judicial where action is effect a correction of a mistake legislative involving interpre- sible” because correction of a matter of constitutional involving statutory mistakes matters of inter- tation. 626 meantime”). unique underly- changed in the This considerations” “pragmatic decisis, majori dynamic are diversi- casts serious doubt on the

ing stare “mutual proce take into account the ty ty’s suggestion cases to the certification “comity” state courts we owe respect” obligation of our to follow dure runs afoul state law. determining applying Andrews. 107 U.S. 33- Burgess Seligman, See addition, include diversity In cases also (1883). 27 L.Ed. 359 S.Ct. unique namely, po- another feature: the add a dimension of These considerations (via guidance to the tential for us seek obligations complexity to our stare decisis from the court to procedure) certification courts are “co-ordinate” because state to which we must defer. With inferior, courts, superior nor in our neither law, subsequent panels of federal questions 33, system. See id. at S.Ct. federalist if prior precedent, follow even (“The an independent Federal courts have decided, wrongly and are limited to en- jurisdiction the administration State couraging en banc reconsideration. with, laws, co-ordinate and not subordinate Adkins, In 520 F.3d at 587-88. diver- courts[.]”). to, As the that of the State cases, however, proce- certification sity the explained, a federal provides unique opportunity a for a dure is, effect, diversity only “in request input from a subsequent panel Guaranty court of the State.” another authority to reexamine and court with York, 99, 108, Trust Co. otherwise-controlling prior prece- overturn L.Ed. 2079 This Gore, 98, 139, dent. See Bush v. involving crucial. In cases distinction is 148 L.Ed.2d 388 law, questions of federal courts (“Notwithstand- J., (Ginsburg, dissenting) authority modify to overturn or a with authority to decide issues of state superior federal courts. panel decision claims, underlying law federal we have Darrah, (citing the certification devise to afford state used R. 774 F.2d at and 6 Cir. Salmi to inform us on high opportunity courts 206(c)). cases, however, diversity In of their law matters own State’s because of “co-ordinate” state courts can decisions cooperative a ‘helps such restraint build prior panel’s pro a force us reconsider ” judicial (quoting Lehman federalism.’ nouncement of state law. See Blaine Schein, 386, 391, Bros. v. Constr., (recognizing 171 F.3d at 350 (1974))). 1741, 40 L.Ed.2d 215 Because decisis does not where there is stare procedure the certification allows us “an indication courts that [state] a appeal to court to which we must defer they would have decided differ [the issue] context, Lots, disregarding are not ently”); Big Fed.Appx. at 427 obligations under stare decisis because (recognizing panel that a of this Court is modifying, or oth- by prior reported panel overturning, decisions we are “bound” prior precedent.3 measurably refusing “unless law has erwise follow [state] Lee, ("Regardless applied F.2d at 272 settled on the state law to be 3. But see case, any ambiguity plaintiffs may precedent should be fol- find in Loui- certification, justify panels regard any lowed other without siana cases such existing ambiguity alleged confusion in state absent there is no as to this Court’s view statutory legal state court decision or of Louisiana law because the issue has squarely against plaintiffs’ pre- which makes this Court’s deci- been resolved amendment (citations omitted)). clearly wrong.” arguments by two sion cise recent Fifth Circuit Lee, however, the Fifth Circuit did not con- Once a of this Court has decisions. unique suggest features cation of that present Both of these law to the situa- tion”). support precepts that the traditional from, prag- a

transforming stare decisis As a result of this inversion of defer- binding a rule in the matic doctrine into ence, impractical it is expect correction co-equal panels context of same by a superior authority. federal in apply easily circuit so do MacGregor, 315 U.S. at 62 S.Ct. 607. Burgess, (recog- 107 U.S. at 33 cases. See imposes This on the lower federal courts a nizing that existence of two co-ordi- “[t]he greater responsibility to make sure that jurisdictions territory in the same nate questions of state right,” law are “settled that “mutual peculiar,” emphasizing they just not that are “settled.” For that respect necessary and deference” are to reason, if certifying question even our a avoid “anomalous and inconvenient” re- Supreme Court of Ohio could be con- sults). example, Supreme For Andrews, refusing strued as our to follow rejected the notion that inferior courts such a deviation from our traditional stare superior must defer to courts with obligations justified “purely to the resolution of issues of local “great responsibility” to apply state law law,” reasoning instead that the decisions properly. judges panels

of district court and circuit greater accorded deference in this be III. they generally great- context have because Because there is sug- data to given er experience interpreting state’s gest that the Supreme Court of Ohio would MacGregor laws. See Mut. State Life reject Star, the rule of Lone believe that Co., 280, 281, Assurance the proper course of action is to certify a 607, 86 L.Ed. 846 The Court has question to Supreme Court of Ohio and justified this inversion of the traditional allow that court to weigh on this issue that, hierarchy by reasoning of deference directly. I recognize that we owe defer- when the federal courts are upon called to, ence generally by, would be bound “they act ... as ‘outsiders’ prior published Andrews because it is a lacking the common exposure to local law directly decision that is almost point. jurisdic- from sitting which comes Darrah, 309; 255 F.3d at Blaine Bros., tion.” Lehman Constr., 350. But because we S.Ct. 1741. This rationale is all the more diversity, we also have an where, here, compelling as the state’s obligation to determine state law accurate- yet court has an issue address ly. enough While there not be “data” directly and thus the federal courts are justify overturning there is upon “predict” called what that court enough more than justify certify- basis to See, e.g., would do. R.R. Comm’n Pull- question Supreme Court of Co., 496, 499, man permit Ohio to that court an opportunity to (observing, 85 L.Ed. 971 a critical resolve the issue. self-assessment, justices that even the Court are “outsiders without United States Court has law,” that, special competence recognized Texas and thus where state law makes available, “we would have little confidence in our the certification procedure independent judgment regarding appli- certify decision to to á state appears

front the same tension we face here because decisions to us to be cor- analysis Id. determined that "the rect.” appropriate prior published to set aside “rests in the sound given in a case only holding “the had precedent not where federal court.” Lehman discretion of the pronouncement Bros., superseded by a later 1741. The been at S.Ct. sources,” judicial or pro- legislative from state Court of Ohio rules of “prior state court decisions from fed- but also where questions certification of vide for XVIII, inadvertently overlooked.” Fac- courts, R. and had been see Ohio S.Ct. eral Etc., (emphasis 652 F.2d at 283 add- accepted certi- tors repeatedly that court ed). from federal courts questions fied Transp., 84 Ohio

past, e.g., Genaro Cent. N.E.2d 782

St.3d IV. then, a proper is whether this is question, Therefore, respectfully I dissent. discre- exercising for our considerable case it is. regard. tion in this believe difficulty in ascer-

Although “the mere remitting

taining local law is no excuse tribunal,” comity, parties to a state federalism,

cooperative practical con- judicial economy are regarding

siderations GREENE, Petitioner, may Sherman L. legitimately be consid- factors certify determining ered in whether court. Leh- question supreme to a state MINING, INC.; KING JAMES COAL Bros., 390-91, at man S.Ct. Kentucky Coal Producers Self-Insur support utilizing 1741. Those factors Fund; Director, ance Office of Work in this case. Al- procedure certification Compensation Programs, ers’ United though this Court concluded Andrews States; Labor, Department Re properly that Lone Star reflects the state spondents. issue, of Ohio law on this for the reasons above, explained sug- evidence No. 08-4094. gests that that is not true. That reason Appeals, United States Court of certifying alone is sufficient to warrant Sixth Circuit. Court of Bush, Ohio. See Argued: June 2009. J., (Ginsburg, dissenting) (encouraging July Decided and Filed: 2009. certification as a means “to afford state

high opportunity to inform us on courts law”).

matters of their own State’s suggestion, majori rejecting this

ty points sug to case law in this circuit

gesting that defer we should to Andrews “measurably

because state law has

changed Maj Op. in the meantime.” See Lots, (quoting Big

at 619 Fed.Appx.

427). But that is not the context in may prior published

which we revisit deci law. As construing

sions courts have contexts,

recognized in similar be

Case Details

Case Name: Rutherford v. Columbia Gas

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 30, 2009

Citation: 575 F.3d 616

Docket Number: 08-3148

Court Abbreviation: 6th Cir.