FLINT RIVERKEEPER, INC. et al v. SOUTHERN MILLS, INC.
ORDER denying 22 Motion for Certificate of Appealability. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/15/2017 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
FLINT RIVERKEEPER, INC., et al.,
SOUTHERN MILLS, INC., d/b/a
TENCATE PROTECTIVE FABRICS,
No. 5:16‐CV‐435 (CAR)
ORDER ON DEFENDANT’S MOTION FOR CERTIFICATION FOR
Before the Court is Defendant Southern Mills’s Motion for Amended Order to
allow Defendant to file a petition for an interlocutory appeal of this Court’s May 12,
2017 Order denying Defendant’s Motion to Dismiss Plaintiffs’ claims for violations of
the Federal Water Pollution Control Act of 1972 (Clean Water Act, or CWA), 33 U.S.C. §
1251, et seq., and Georgia law. Having considered Defendant’s Motion, Plaintiffs’
response, and the brief of the amici curiae, the Court HEREBY DENIES Defendant’s
Motion [Doc. 22] for the following reasons.1
In this action, Plaintiffs allege Defendant is violating the CWA and certain state
laws by unlawfully discharging polluted industrial wastewater into tributaries of the
Amici curiae Georgia Association of Manufacturers, Georgia Poultry Federation, and Georgia Paper and
Forest Products Association filed a brief in support of Defendant’s Motion. [Doc. 28.]
Flint River, both overland and via groundwater with a direct hydrological connection to
surface water. Pertinent to the present Motion, in the May 12, 2017 Order, the Court
found Plaintiffs sufficiently stated a claim under the CWA that (1) Defendant discharges
pollutants into “navigable waters” via hydrologically connected groundwater; and (2)
Defendant discharges wastewater into groundwater from a point source. On May 30,
2017, Defendant filed the present Motion seeking a certification for interlocutory appeal
on both issues. Defendant’s Motion is now ripe for ruling.
The certification of interlocutory appeals from a district court to the court of
appeals is governed by 28 U.S.C. § 1292(b). By its terms, § 1292(b) authorizes an appeal
of an interlocutory order only where (1) “such order involves a controlling question of
law” (2) “as to which there is substantial ground for difference of opinion” and (3)
where “an immediate appeal from the order may materially advance the termination of
the litigation.”2 The Eleventh Circuit has characterized a § 1292(b) interlocutory appeal
as a “rare exception” to the premise that the great bulk of appellate review must be
conducted after final judgment.3 As a result, § 1292(b) should “be used only in
exceptional cases where a decision of the appeal may avoid protracted and expensive
litigation [,] where a question which would be dispositive of the litigation is raised[,]
28 U.S.C. § 1292(b); see also OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1359 (11th Cir.
2008) (noting that a litigant seeking § 1292(b) certification must satisfy all of these elements); McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1264 (11th Cir. 2004) (describing these three criteria as the “core
requirement” for § 1292(b) certification).
3 McFarlin, 381 F.3d at 1359; see also OFS Fitel, 549 F.3d at 1359 (pointing out that “§ 1292(b) sets a high
threshold for certification to prevent piecemeal appeals”).
and there is serious doubt as to how it should be decided.”4 “Neither the mere 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.”5
Here, an interlocutory appeal will not advance the ultimate termination of this
litigation. Discovery is necessary before an ultimate decision can be made regarding
whether Plaintiffs can maintain their CWA claim—either on summary judgment or by
trial. Generally, “interlocutory appeals of denials of a motion to dismiss are less likely
to advance the ultimate termination of litigation because the Court must assume that all
the facts alleged in the complaint are true.”6 In this case, whether Defendant discharges
pollutants from a point source into “navigable waters” via hydrologically connected
groundwater “requires a full review of the facts, not simply a conclusion based on the
law.”7 In denying Defendant’s Motion to Dismiss, this Court merely held that accepting
the facts alleged in the Complaint as true, Plaintiff has stated a claim under the CWA.
With the benefit of discovery, Defendants can argue on summary judgment that it does
not discharge pollutants from a point source into “navigable waters.”
For the reasons set forth above, Defendant’s Motion for Amended Order [Doc.
McFarlin, 381 F.3d at 1256.
U.S., ex rel. Powell v. Am. InterContinental Univ., Inc., 756 F. Supp. 2d 1374, 1379 (N.D. Ga. 2010) (citations
6 Fabricant v. Sears Roebuck & Co., No. 98‐1281‐CIV‐NESBITT, 2001 WL 883303, at *2 (S.D. Fla. Jan. 29, 2001)
(internal citations omitted).
7 See Sierra Club v. Virginia Elec. and Power Co., No. 2:15cv112, 2016 WL 5349081, at *3 (E.D. Va. Feb. 4,
2016) (denying defendant’s motion for certification for interlocutory appeal).
22] to allow Defendant to file a petition for an interlocutory appeal to the Eleventh
Circuit Court of Appeals is DENIED.
SO ORDERED, this 15th day of August, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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