E-Filed 08/02/2016 @ 03:15:34 PM Honorable Julia Jordan Weller Clerk Of The Court No. __________ IN THE SUPREME COURT OF ALABAMA EX PARTE AUSTAL USA, LLC, PETITIONER. (IN RE: MICHAEL KESHOCK, MARTIN OSBORN, RICHARD FITZGERALD, TYRONE LUCAS, RILEY BODIFORD, TOMMIE BRANDON, JUSTIN REED, AND WILLIAM WHITE, PLAINTIFFS, V. METABOWERKE GMBH; METABO CORPORATION; AUSTAL USA, LLC; SOUTHERN GAS AND SUPPLY, INC.; ET AL. DEFENDANTS.) AUSTAL USA’S PETITION FOR PERMISSION TO APPEAL OR, IN THE ALTERNATIVE, FOR A WRIT OF MANDAMUS From the Mobile County Circuit Court (02-CV-2015-901370) (The Honorable Robert H. Smith, presiding) Brian P. McCarthy Anne Laurie McClurkin MCDOWELL KNIGHT ROEDDER & SLEDGE, LLC 11 North Water St., Ste. 13290 Mobile, Alabama 36602 (251) 432-5300 bmccarthy@mcdowellknight.com amcclurkin@mcdowellknight.com John C. Neiman, Jr. Prim F. Escalona MAYNARD, COOPER & GALE, P.C. 1901 Sixth Ave. N. Ste. 2400 Birmingham, AL 35203 (205) 254-1000 jneiman@maynardcooper.com pescalona@maynardcooper.com Attorneys for Petitioner Austal USA, LLC TABLE OF CONTENTS TABLE OF AUTHORITIES .........................................ii INTRODUCTION ................................................ 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY ........................ 2 QUESTION PRESENTED ...........................................8 STATEMENT OF JURISDICTION ...................................... 9 REASONS THIS COURT SHOULD GRANT THE PETITION .....................10 I. This Court should grant Austal permission to appeal..11 A. There is substantial basis for difference of opinion regarding the trial court’s holding that a plaintiff can circumvent an employer’s immunity through “intentional misconduct” allegations of this sort....11 B. An immediate appeal would materially advance this case and avoid protracted and expensive litigation... 15 II. In the alternative, mandamus should issue............17 A. Austal has a clear legal right to dismissal of Count VII, and the trial court has an imperative duty to dismiss that cause of action......................... 17 B. Austal will have no other adequate remedy, and Austal has properly invoked this Court’s jurisdiction....... 18 CONCLUSION .................................................20 CERTIFICATE OF SERVICE .......................................22 i TABLE OF AUTHORITIES CASES Ex parte AutoSource Motors, LLC, 156 So. 3d 397 (Ala. 2014)...........................17 Ex parte Flint Const. Co., 775 So. 2d 805 (Ala. 2000)...........................18 Ex parte Rock Wool Mfg., __ So. 3d __, 2016 WL 1077268 (Ala. Mar. 18, 2016).....................12, 13, 15, 18 Fisher v. Halliburton, 667 F.3d 602 (5th Cir. 2002).....................13, 14 Houston v. Bechtel Assocs. Prof'l Corp., 522 F. Supp. 1094 (D.D.C. 1981)...................... 14 Rodriguez-Flores v. U.S. Coatings, Inc., 133 So. 3d 874 (Ala. 2013).......................passim Ryan v. Hayes, 831 So. 2d 21 (Ala. 2002) .................19 Taylor v. Transocean Terminal Operators, Inc., 785 So. 2d 860 (La. Ct. App. 2001)...................14 STATUTES 33 U.S.C. §905 (Longshoreman and Harbor Workers’ Compensation Act)................................ passim ALA. CODE §12-2-7 .......................................... 9 ALA. CODE §25-5-52 (Alabama Workers’ Compensation Act) passim ALA. R. APP. P. 5.............................. 10, 11, 16, 19 OTHER AUTHORITIES LARSON’S WORKERS’ COMPENSATION LAW (2010)...................... 14 MOORE, TERRY A., ALABAMA WORKERS’ COMPENSATION (2d ed. 2013) .... 12 ii Press Release, Alabama Secretary of State, Update: While in Australia, Governor Riley Visits Austal Headquarters, June 22, 2009.................... 3 Sims, Cliff, Federal Delegation Defends 4,000 Alabama Ship-Building Jobs From Obama’s ‘Fatal Blow,’ YELLOWHAMMER NEWS, Dec. 17, 2015.........................3 iii INTRODUCTION The ruling below, if allowed to stand, will make it more difficult to attract new employers and jobs to Alabama in the future. Austal USA, LLC, is a shipbuilder and naval contractor that, since its arrival in 1999, has become a boon to the Alabama economy, employing more people than any other private company in Mobile. The plaintiffs in this case are or were Austal employees who allege that they were hurt while building ships at the plant. They do not allege that Austal failed to pay them workers-compensation benefits, and the law provides that because Austal was required to pay those benefits, it “enjoy[s] immunity from” the tort claims the plaintiffs are asserting. Rodriguez-Flores v. U.S. Coatings, Inc., 133 So. 3d 874, 881 (Ala. 2013). Yet the trial court has allowed these plaintiffs to circumvent this immunity by alleging Austal, by intentionally requiring them to work with equipment Austal knew to be dangerous, acted with “specific intent to injure” the plaintiffs. See Tab A at 1; Tab B at 1. That ruling is contrary to settled understandings about how employment law works. The workers’ compensation system guarantees employees that their 1 employers will pay them certain amounts for injuries they suffer in workplace accidents, but the system also guarantees that these employers will not face additional, tort-based liability. The lower court’s ruling would upset that careful balance, allowing plaintiffs to pierce employers’ immunity simply by pleading that their employers were aware of the risks that led to the injuries and, therefore, acted with “specific intent to injure” them. Litigation costs will spike for employers, and employment and wages will correspondingly go down. Under the trial court’s ruling, everyone stands to lose. The law does not require or allow that result, and this Court should hold as much now. The trial court has conceded that its ruling can reasonably be questioned, and it therefore has certified its order denying Austal’s immunity- based motion to dismiss for an interlocutory appeal. See Tab B at 1. This Court should grant review and reverse the trial court’s ruling in light of the immunity the law provides employers from litigation of this sort. STATEMENT OF FACTS AND PROCEDURAL HISTORY 1. Background about Austal. Austal’s arrival in Mo- bile marked one of the State’s most significant economicdevelopment achievements in recent times. Austal’s parent 2 company is a global defense contractor with its headquarters in Australia. Economic-development incentives and Alabama’s favorable business environment persuaded the company to build its U.S. operations on the Mobile River. See Press Release, Alabama Secretary of State, Update: While in Australia, Governor Riley Visits Austal Headquarters, June 22, 2009, http://www.sos.alabama.gov/PR/PR.aspx?ID=1725. The factory builds large naval warships and currently puts over 4,000 employees and contractors to work. See Cliff Sims, Federal Delegation Defends 4,000 Alabama Ship-Building Jobs From Obama’s ‘Fatal Blow,’ YELLOWHAMMER NEWS, Dec. 17, 2015, http://yellowhammernews.com/politics-2/federal-delegationdefends-4000-alabama-ship-building-jobs-from-obamas-fatalblow/. 2. Procedural history. Michael Keshock and seven oth- er Austal employees filed this lawsuit. Each plaintiff alleges that he “was working as the agent, servant, or employee of Austal” at the time of his injuries. Tab C ¶¶67, 72, 77, 82, 87, 92, 97, 102. Each alleges that Austal “provided [him] a” tool known as a Miller saw “to perform his assigned work.” Id. ¶¶68, 73, 78, 83, 88, 93, 98, 103. Each alleges that the saw was defective. See id. ¶62. And each 3 alleges that while working, he “came into contact with the exposed saw blade,” causing lacerations, fractures, or other injuries. Id. ¶¶69, 74, 79, 84, 89, 94, 99, 104. These plaintiffs seek compensatory and punitive damages from several defendants. They have sued two foreign corporations they allege to have manufactured the saw, Metabowerke GMBH and Metabo Corporation. See id. ¶¶9-10. They also have sued Southern Gas and Supply, Inc., which allegedly played a role in the saw’s design and distribution. See Tab D ¶12. The plaintiffs assert claims against those three defendants for, among other things, wantonness, negligence, and product liability. See id. ¶¶151-64, 177-82. Those particular claims are not at issue in this petition. At issue, instead, is the plaintiffs’ decision to sue Austal. Austal manufactures its ships on the shoreline, so its workers-compensation obligations are governed by the federal Longshoreman and Harbor Workers’ Compensation Act, 33 U.S.C. §905. This statute, known as the LWHCA, “establishes a comprehensive federal workers’ compensation program that provides” employees like the plaintiffs with “benefits for work-related injuries.” Rodriguez-Flores, 133 So. 3d at 878-79. This Court has held that under the LWHCA 4 the “employer must pay the statutory benefits regardless of fault, but is shielded from any further liability to the longshoreman or his or her estate.” Id. at 879. The LHWCA therefore works like the Alabama Workers’ Compensation Act (the “Alabama WCA”), which has “concurrent jurisdiction,” to the extent it is not inconsistent with the LHWCA, on the shoreline. Id. at 881-89. The Alabama WCA requires employers to provide no-fault compensation for workplace accidents but specifies that employees will not “have a right to any other method, form, or amount of compensation or damages” from the employers who make the payments. ALA. CODE §25-5-52. This Court has explained that “employers enjoy immunity from tort claims under the LHWCA as they do under the [Alabama WCA].” Rodriguez-Flores, 133 So. 3d at 881. Yet the plaintiffs have named Austal as an additional defendant on at least two theories. First, Count I of their Third Amended Complaint alleged that Austal is liable for outrage. See Tab C ¶¶107-16. But the trial court rightly dismissed that claim with prejudice, see Tab F at 1, and that claim is not at issue here. More important for present purposes is Count VII of the plaintiffs’ Third Amended Complaint, which attempted to bring Austal into the case by 5 inventing a new theory -- and, indeed, a new tort. This count sought damages against Austal under a novel cause of action the plaintiffs labeled “intentional misconduct.” Tab C ¶¶149-52. To this end, the plaintiffs alleged that Austal “intentionally provided Plaintiff[s] with a dangerous and defective Miller saw with the specific intent that it cause injury to Plaintiffs.” Id. ¶151. Austal asked the trial court to dismiss Count VII, noting among other things that the workers-compensation laws immunized it from that claim and that “intentional misconduct” was not a recognized cause of action under Alabama law. See Tab G at 4-9. The trial court denied that motion in a summary order on June 15, 2016. See Tab A at 1. Austal then, on June 27, asked the court to either vacate that order or to certify it for a permissive appeal under Rule 5 of the Alabama Rules of Appellate Procedure. See Tab H. On the next day, the plaintiffs doubled down on their “intentional misconduct” theory by filing a Fourth Amended Complaint. See Tab D. That pleading re-asserted the plaintiffs’ “intentional misconduct” cause of action in Count VII, see id. ¶¶183-88, and added five more counts alleging that Austal intentionally injured them. Count VIII asserted 6 that Austal’s decision to have them use the saw amounted to assault and battery. See id. ¶¶189-92. Count XII asserted that Austal committed fraud by making “false statements regarding the” risks associated with the saw with “the conscious and deliberate intent to injure its workmen.” Id. ¶¶206-215. Count XIII asserted that Austal fraudulently concealed the saw’s risks from them, thus leading to their injuries. Id. ¶¶216-21.1 Austal filed a motion to dismiss the plaintiffs’ Fourth Amended Complaint on July 18. But critically, on the next day, July 19, the trial court granted Austal’s then-stillpending motion to certify the permissive appeal on the “intentional misconduct” count from the Third Amended Com- plaint. See Tab B. The trial court thus certified that, in its opinion, a substantial ground exists for a difference of opinion on the controlling question “[w]hether the alle1 Despite the trial court’s previous dismissal of the plaintiffs’ outrage claim with prejudice, the plaintiffs tried to resurrect that claim in Count I. See Tab D ¶¶141-50. The plaintiffs also added two new fraud counts, which are nothing more than plaintiffs’ previously dismissed outrage claim re-labeled as fraud. Plaintiffs’ fraud claims assert that Austal fraudulently induced them to use the saw after they returned to work following their accidents. See id. ¶¶222-35. These claims make the same allegations and seek to recover for the same injuries as plaintiffs’ outrage claim. Austal has moved to dismiss those new counts. See Tab J at 15-22. 7 gations in Count VII of Plaintiffs’ Third Amended Complaint state a claim under Alabama Rule of Civil Procedure 12(b)(6) against Austal upon which relief can be granted.” Id. at 1. The trial court also certified that “an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that such an appeal would avoid protracted and expensive litigation.” Id. Although the principal relief Austal is seeking from this Court arises from that Rule 5 certification, subsequent events relating to the Fourth Amended Complaint may bear on the scope and timing of this Court’s review. The trial court held a hearing on Austal’s motion to dismiss the Fourth Amended Complaint on July 29, after it had certified its previous order for interlocutory review. During the hearing, the court stated that it would postpone consideration of Austal’s motion to dismiss the Fourth Amended Complaint until the court had an opportunity to review the plaintiffs’ response, which they had filed two days before. The court re-set the hearing for August 12, 2016. QUESTION PRESENTED The trial court certified the following question for review: “[w]hether the allegations in count VII of Plain- 8 tiffs’ Third Amended Complaint state a claim under Alabama Rule of Civil Procedure 12(b)(6) against Austal upon which relief can be granted.” Tab B at 1. The question presented thus is whether an employee who alleges that he was injured in a workplace accident may, by alleging that his employer provided him with a known defective and dangerous tool to perform his job duties with the “specific intent to injure” the employee, state law circumvent provide to the immunity employers for that tort federal liability and from workplace accidents. STATEMENT OF JURISDICTION This Court has jurisdiction. This case falls within this Court’s original appellate jurisdiction because the plaintiffs are seeking more than $50,000. See ALA. CODE §§122-7, 12-3-10. And this petition is timely. The trial court certified its order for interlocutory review on July 19, and Austal is filing this petition within two weeks of that date, as Rule 5(a)(2) requires. The trial court did issue its certification 34 days after the June 15 order it was certifying, which is slightly after the 28-day “presumptively reasonable time” Rule 5(a)(1) establishes for the trial court to act. But the Court Comments to Rule 5 state 9 that this “presumptively” reasonable time is “not a jurisdictional requirement,” and the certification below pro- ceeded at a reasonable pace. ALA. R. APP. P. 5 Court Comment (2002). Austal asked for the certification on June 28, which was 13 days after the court denied Austal’s motion to dismiss. The plaintiffs filed their Fourth Amended Com- plaint on the next day, which may have delayed the court’s ruling on Austal’s request for the Rule 5 certification. See Tab D. The July 4 holiday also intervened during this time, and the court still entered the certification less than a week after the presumptively reasonable date. These circumstances constitute “good cause” for this “Court to consider the petition, notwithstanding that the certification was entered beyond the presumptively reasonable time of 28 days.” ALA. R. APP. P. 5(a)(1). REASONS THIS COURT SHOULD GRANT THE PETITION If allowed to stand, the trial court’s ruling will destabilize principles that have long governed workplace accidents in this State. This Court should grant this petition. Upon reviewing the merits, this Court should declare that the LHWCA and the Alabama WCA provide these plaintiffs the exclusive means for seeking compensation from Austal, 10 and that these statutes immunize Austal from the novel “intentional misconduct” claims the plaintiffs have asserted below. I. This Court should grant Austal permission to appeal. This Court should grant Austal permission to take this appeal. An interlocutory appeal is appropriate when (1) the order “involves a controlling question of law as to which there is substantial ground for difference of opinion”; (2) “an immediate appeal from the order would materially advance the ultimate termination of the litigation”; and (3) “the appeal would avoid protracted and expensive litigation.” ALA. R. APP. P. 5(a). As the trial court found, each of those conditions is present here. A. There is substantial basis for difference of opinion regarding the trial court’s holding that a plaintiff can circumvent an employer’s immunity through “intentional misconduct” allegations of this sort. The trial court was correct to certify that its order involved a “controlling question of law as to which,” at the very least, “there is substantial ground for difference of opinion.” Tab B at 1. Indeed, the trial court’s ruling on the plaintiffs’ “intentional misconduct” claim is contrary to both the Alabama WCA and the LHWCA. 11 To the extent that the Alabama WCA applies, this Court recently held, in Ex parte Rock Wool Manufacturing, that this statute bars plaintiffs from suing employers on this sort of theory. See Ex parte Rock Wool Mfg., __ So.3d ___, 2016 WL 1077268, at *6-7 (Ala. Mar. 18, 2016). The plaintiff in Rock Wool alleged that he had been harmed as the result of his employer removing doors from a furnace, and he sought to circumvent his employer’s immunity by alleging that its conduct in removing the doors was “intentional, even gross and deliberate.” Id. at *6. This Court held that this allegation could not pierce the employer’s immunity. It reasoned that “‘the Legislature intended the exclusivity provisions to bar any civil action against an employer for a work-related injury or death covered by the [Workers’ Compensation] Act even if caused by the willful and intentional conduct of the employer.’” Id. (quoting TERRY A. MOORE, ALABAMA WORKERS’ COMPENSATION §20:7 (2d ed. 2013)). This Court concluded that “[e]ven assuming that Rock Wool acted intentionally with regard to Palmer’s workplace accident, it was nonetheless a workplace accident,” and that the tort claims therefore were “barred.” Id. at *7. 12 This same logic applies to the extent that the federal LHWCA governs Austal’s responsibilities. It is true that, as this Court has noted, other “courts have recognized an exception to the exclusivity provision of the LHWCA where the employer has committed an intentional tort.” RodriguezFlores, 133 So. 3d at 881 (citing Fisher v. Halliburton, 667 F.3d 602 (5th Cir. 2012)). But Justice Murdock has rightly “question[ed]” those decisions’ logic, id. at 890 (Murdock, J., concurring in the result), and those “‘cases take a very narrow view of the types of intentional injury that lie outside of the LHWCA’” in any event. Id. at 881 (quoting Fisher, 667 F.3d at 618). Critically for present purposes, those cases “consistently require that the employer have had a specific intent or desire that the injury occur.” Id. at 881-82 (collecting cases). This exception to the LHWCA is consistent with the interpretation this Court adopted of the Alabama WCA in Rock Wool, for it does not pierce employer immunity in cases when the plaintiff’s injuries arose from a workplace accident, even when the employer is alleged to have acted intentionally. As a leading treatise explains: Since the legal justification for the common-law action is the nonaccidental character of the inju- 13 ry from the defendant employer's standpoint, the common-law liability of the employer cannot . . . be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury. 9 LARSON’S WORKERS’ COMPENSATION LAW §103.03, at 103–6 to 103–8 (2014) (emphasis added). The U.S. District Court for the D.C. District thus has held that a plaintiff could not pierce his employer’s immunity under the LHWCA by alleging that the employer intentionally violated safety regulations in the conduct of its business. See Houston v. Bechtel Assocs. Prof'l Corp., 522 F. Supp. 1094, 1096-97 (D.D.C. 1981). The only cases in which this exception has applied are ones in which the employer has intentionally struck an employee as the result of personal animus, not as the result of some business decision. See Fisher, 667 F.3d at 620; see also Taylor v. Transocean Terminal Operators, Inc., 785 So. 2d 860, 863-64 (La. Ct. App. 2001) (employee who was intentionally stabbed by employer’s alleged agent fell within the exception). That is not what the plaintiffs allege Austal did here. By their own admission, they allege that they suffered in- 14 juries when a tool Austal supplied to them “to perform their work” kicked back and contacted their bodies. See, e.g., Tab C ¶¶38, 68-69. Under the principles this Court applied to the Alabama WCA in Rock Wool, “[e]ven assuming that [Austal] acted intentionally with regard to [each plaintiff’s] workplace accident, it was nonetheless a workplace accident,” so the plaintiffs’ claims are “barred.” 2016 WL 1077268, at *7. The trial court was correct when it recognized that, at the very least, “substantial ground” exists for a “difference of opinion” with respect to its decision here. Tab B at 1. B. An immediate appeal would materially advance this case and avoid protracted and expensive litigation. As the trial court also noted, this case satisfies Rule 5’s other requirements: this Court’s resolution of Austal’s appeal would “materially advance the ultimate termination of this litigation” and “avoid protracted and expensive litigation.” Tab B at 1. On these points, the timing of the trial court’s certification is particularly instructive. Before the trial court ruled on Austal’s request for Rule 5 certification relating to Count VII of the Third Amended Complaint, the plaintiffs already had filed their Fourth Amended Complaint. In that pleading, the plaintiffs’ “spe15 cific intent to injure” claim, previously set out only in Count VII, had blossomed into no fewer than five additional, derivative causes of action -- including claims for assault and battery, fraud, and fraudulent suppression. See supra at 6-7. The trial court thus had a powerful basis to conclude that if this Court reverses its order and rejects the plaintiffs’ theory, an immediate appeal will avoid protracted and expensive litigation. So, too, did the trial court have strong evidence that an immediate appeal to this Court would “materially advance the ultimate termination of this litigation.” ALA. R. APP. P. 5(a). A ruling for Austal from this Court would eliminate not only the plaintiffs’ cause of action for “intentional misconduct” but also, by implication, the derivative causes of action set out in the Fourth Amended Complaint. If this Court holds that the “specific intent to injure” exception does not apply in this context, the plaintiffs’ case against Austal should end.2 An interlocutory appeal would 2 The plaintiffs also have asserted, in the Fourth Amended complaint, additional causes of action alleging that Austal caused them emotional distress. See supra at 7 n.1. Austal has explained in its submissions to the trial court why those counts do not state a claim upon which relief can be granted, and the trial court should dismiss those counts on 16 promote the interests of judicial economy, and this Court should allow Austal to take this step. II. In the alternative, mandamus should issue. If this Court does not grant Austal permission to ap- peal, it should issue a writ of mandamus. This Court issues the writ when it finds: “1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte AutoSource Motors, LLC, 156 So. 3d 397, 403 (Ala. 2014) (internal quotation marks omitted). Each of those factors is present here. A. Austal has a clear legal right to dismissal of Count VII, and the trial court has an imperative duty to dismiss that cause of action. Austal has a clear legal right to dismissal of the plaintiffs’ “intentional misconduct” cause of action, and the trial claim. As court noted has an above, imperative because duty the to dismiss plaintiffs’ that claims against Austal arise from a workplace accident, the trial court has no subject-matter jurisdiction to consider those that basis, just as it dismissed the outrage claim previously. See Tab J at 15-22; Tab F at 1. 17 claims, and Austal has immunity from them. See supra at 1216 (citing Rock Wool, 2016 WL 1077268, at *6-7). The trial court’s error involves a clear abuse of discretion, thus justifying the writ. B. Austal has properly invoked this Court’s jurisdiction, and an appeal after final judgment would not be an adequate remedy. The other pertinent factors give this Court discretion to issue the writ. This Court has held that courts have no “subject-matter jurisdiction” to consider tort claims that the LHWCA bars, Rodriguez-Flores, 133 So. 3d at 878 (internal quotation marks omitted), and it is axiomatic that “the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus,” Ex parte Flint Const. Co., 775 So. 2d 805, 808 (Ala. 2000). This Court likewise has held that a trial court’s denial of employers’ tort immunity for workplace accidents “may be reviewed by mandamus.” Rock Wool Mfg., 2016 WL 1077268, at *2-3. By issuing the writ in this area in the past, this Court effectively recognized that appeal after judgment is not an adequate remedy for a trial court’s denial of an employer’s immunity to workplace-accident claims. As this Court has explained in another context, “[o]ne of the pur- 18 poses of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Ryan v. Hayes, 831 So. 2d 21, 31 (Ala. 2002) (internal quotation marks omitted). Requiring Austal to defer review until after discovery has been conducted, and indeed until after final judgment has been entered, would effectively deprive it of this immunity altogether. Thus, if this Court does not review the questions presented through a Rule 5 permissive appeal, it can and should resolve this case through a writ of mandamus. It does not matter, for these purposes, that Austal is filing this petition 48 days after the trial court’s June 15 order, and thus 6 days outside the nonjurisdictional 42-day “presumptively reasonable” period Rule 21(a)(3) establishes for standalone mandamus petitions. The principal relief Austal is seeking is an interlocutory appeal under Rule 5, and Austal timely filed this petition for permission to appeal within 14 days of the trial court’s certification on July 19. See ALA. R. APP. P. 5(a)(2). Because this petition was not due under Rule 5 until August 2, it made sense to defer filing it until after the trial court had an oppor- 19 tunity to consider, at the hearing set for July 29, certain questions Austal had raised about the plaintiffs’ subsequently filed Fourth Amended Complaint. See supra at 8. But now that Austal has timely sought permission to appeal, this Court will have discretion, as an alternative to granting the permissive appeal, to issue a writ of mandamus instead. Regardless of which remedy this Court chooses, in light of the repercussions the trial court’s ruling has on not only Austal but also employers throughout the State, this Court should review this issue now. CONCLUSION This Court should grant Austal permission to appeal the trial court’s June 19 order denying its motion to dismiss Count VII of the Third Amended Complaint. In the alternative, this Court should issue the writ of mandamus and direct the trial court to dismiss that claim with prejudice. Respectfully submitted, s/ John C. Neiman, Jr. One of the Attorneys for Petitioner Austal USA, LLC 20