Coleman v. Unum Group Corporation

Filing 119

ORDER denying 114 Motion to Certify Interlocutory Appeal. Signed by Chief Judge William H. Steele on 9/28/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
P. MICHAEL COLEMAN,

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) CIVIL ACTION 15-0367-WS-M
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Plaintiff,
v.
UNUM GROUP CORPORATION,
Defendant.

ORDER
This matter is before the Court on the plaintiff’s motion for certification of
immediate appeal. (Doc. 114). The plaintiff requests the Court to certify its
recent order granting the defendant’s motion for partial summary judgment as to
the plaintiff’s bad faith claim. (Doc. 110).
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be 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, he shall so state in writing
in such order.
28 U.S.C. § 1292(b). The Court is not of such an opinion. Assuming without
deciding that the first two requirements are satisfied, the third is not. The plaintiff
assumes that an immediate appeal would materially advance the ultimate
termination of the litigation because it would avoid trial in “piecemeal fashion” –
the contract claim in November 2016, the bad faith claim on remand from the
Eleventh Circuit following appeal from a final judgment (should the plaintiff
prevail). (Doc. 114 at 5). If the plaintiff is right, every order eliminating a claim
satisfies the third requirement of Section 1292(b), because in every such case there
is a possibility of reversal of the dismissal order on appeal, necessitating a second

trial. In essence, the plaintiff suggests that the law favors piecemeal appeals in
order to avoid piecemeal trials. The law, however, does not favor piecemeal
appeals.
“Piecemeal appellate review has a deleterious effect on judicial
administration.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276 (11th
Cir. 2000). Interlocutory appeals “are inherently disruptive, time-consuming, and
expensive.” Id. (internal quotes omitted). “Because permitting piecemeal appeals
is bad policy, permitting liberal use of § 1292(b) interlocutory appeals is bad
policy.” McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1259 (11th Cir.
2004).
The third requirement is satisfied only if interlocutory appeal “would serve
to avoid a trial or otherwise substantially shorten the litigation.” McFarlin, 381
F.3d at 1259. “And the answer to that question [raised on interlocutory appeal]
must substantially reduce the amount of litigation left in the case.” Id. That
circumstance is not present here. As the Court said in Williams v. Saxon Mortgage
Co., 2007 WL 4105126 (S.D. Ala. 2007), “[t]his case is on the cusp of being ready
for trial now, and an appeal (regardless of its outcome) would delay, not obviate
the need for, a trial.” Id. at *4. And as the Court said in Gipson v. Mattox, 511 F.
Supp. 2d 1182 (S. D. Ala. 2007), “[a]s it appears that a trial will be necessary on
the [contract] clai[m] irrespective of the outcome of [the plaintiff’s] appeal of the
[bad faith] question, allowing an interlocutory appeal here would do nothing more
than delay the trial and invite piecemeal appeals.” Id. at 1193.
Interlocutory appeal is the “rare exception,” McFarlin, 381 F.3d at 1264,
and the plaintiff “bears the burden of showing that all § 1292(b) prerequisites are
satisfied and that this is one of the rare exceptions in which judicial discretion
should be exercised to grant this disfavored remedy.” Shedd v. Wells Fargo Bank,
N.A., 2016 WL 4565755 at *3 (S.D. Ala. 2016). The Court is not persuaded that
the plaintiff has met his burden or that the Court should exercise its discretion as
he seeks.
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For the reasons set forth above, the motion for certification of immediate
appeal is denied.
DONE and ORDERED this 28th day of September, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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