Windom v. Norfolk Southern Railway Company

Filing 63

ORDER DENYING 48 Motion for Certificate of Appealability. Ordered by Judge Marc Thomas Treadwell on 7/23/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PAUL WINDOM,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.

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CIVIL ACTION NO. 5:10-CV-407 (MTT)

ORDER
This matter is before the Court on the Defendant’s Motion to Certify this Court’s
Order (Doc. 47) for Interlocutory Appeal pursuant to 28 U.S.C. § 1292(b), Motion for
Expedited Briefing Schedule, Motion to Amend the Court’s Order, and Motion to Stay.
(Doc. 48).
Pursuant to 28 U.S.C. § 1292(b), an interlocutory appeal is appropriate when “it
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.” The Eleventh Circuit has made clear
that there is a strong presumption against interlocutory appeals, calling them a “rare
exception.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1264 (11th Cir. 2004).
Further, section “1292 is intended to be used sparingly and only in exceptional cases
where a speedy appeal would avoid protracted litigation.” United States v. American
Intercontinental University, Inc., 756 F. Supp. 2d 1374, 1378 (N.D. Ga. 2010).

Here, the Defendant seeks to appeal the Court’s Order denying the Defendant’s
motion for partial summary judgment on the issue of “whether the requirements of the
Safety Appliance Act, 49 U.S.C. § 20301, et seq., apply to a high-rail vehicle (a specially
equipped vehicle that can be operated on the roadway or on the railroad line) when the
vehicle is not being operated on the railroad carrier’s railroad lines.” (Doc. 48 at 1-2).
As an initial matter, the question the Defendant seeks to appeal is a pure question of
law. However, the Order does not involve an issue over which there is a substantial
ground for difference of opinion, nor would an immediate appeal materially advance the
ultimate termination of the litigation.
First, the “substantial difference of opinion” inquiry can be satisfied if “the issue is
difficult and of first impression, a difference of opinion as to the issue exists within the
controlling circuit, or the circuits are split on the issue.” American Continental, 756 F.
Supp. 2d at 1378-79. “Neither the lack of authority on the issue nor the claim that the
district court’s ruling is incorrect constitutes a substantial ground for difference of
opinion.” Id. at 1379. Although the Defendant correctly asserts that there is no
Eleventh Circuit case addressing this issue, the lack of authority does not constitute a
substantial ground for difference of opinion. Further, the Defendant points to no case
law or legislative history supporting its interpretation of the Safety Appliance Act.
Indeed, all case law and legislative history supports this Court’s interpretation of the
Safety Appliance Act. There is no circuit split on this issue, nor is there a difference of
opinion as to the issue among the district courts in the Eleventh Circuit.
Further, an immediate appeal would not materially advance the ultimate
termination of this litigation. Materially advancing the termination of the litigation

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“means that the resolution of the controlling legal issue would serve to avoid a trial or
otherwise substantially shorten litigation.” McFarlin, 381 F.3d at 1259. The Defendant
contends that an immediate appeal would advance the ultimate termination of the
litigation “by obviating the need for two trials if the Order is reversed,” and that “[a]n
immediate appeal would also potentially simplify the issues for trial and reduce the
number of pre-trial motions and objections during trial.” (Doc. 48-1 at 5). The
Defendant alleges no other facts or theories to support its argument that resolution of
the SAA issue would advance the ultimate termination of the litigation. On the other
hand, the Plaintiff alleges that even if the Eleventh Circuit ruled in favor of the
Defendant, the Plaintiff can still pursue negligence and negligence per se claims against
the Defendant for his injuries. (Doc. 49).
In McFarlin, the Eleventh Circuit reasoned that “[b]ecause permitting piecemeal
appeals is bad policy, permitting liberal use of § 1292(b) interlocutory appeals is bad
policy.” McFarlin, 381 F.3d at 1259. Here, the case is ready for trial. Following the
trial, the Defendant will have an opportunity to appeal all issues together, rather than in
a piecemeal fashion. The Court determines that proceeding to trial is the best way to
advance the ultimate termination of litigation. See Palacious v. Boehringer Ingelheim
Pharmaceuticals, Inc., 2011 WL 4102310, *4 (S.D. Fla.). This is simply not the type of
“rare exception” that is appropriate for interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b). The Defendant’s Motion for Interlocutory Appeal is DENIED, and the
remaining Motions are deemed MOOT. (Doc. 48).

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SO ORDERED, this the 23rd day of July, 2012.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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