S-A et al v. Hawaii School District, Hilo-Waiakea Complex et al
Filing
139
ORDER DENYING PLAINTIFFS' MOTION FOR (1) INTERLOCUTORY APPEAL AND (2) STAY PENDING THAT APPEAL re: 124 . Signed by JUDGE ALAN C. KAY on 7/16/2018. (afc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
K.S-A, a minor, and J.S-A, a minor,)
by and through Joshua Douglas
)
Franklin, as their Guardian Ad
)
Litem
)
)
Plaintiffs,
)
)
vs.
) Civ. No. 16-00115 ACK-KJM
)
STATE OF HAWAII, DEPARTMENT
)
OF EDUCATION
)
)
Defendant.
)
___________________________________)
ORDER DENYING PLAINTIFFS’ MOTION FOR (1) INTERLOCUTORY APPEAL
AND (2) STAY PENDING THAT APPEAL
For the reasons discussed below, the Court DENIES
Plaintiffs’ Motion for Interlocutory Appeal and for Stay Pending
that Appeal (“June 4, 2018 Motion”), ECF No. 124.
BACKGROUND
For purposes of the current motion, the Court
discusses only those facts relevant to Plaintiffs’ June 4, 2018
Motion.
On March 1, 2018, Plaintiffs filed a motion for
partial summary judgment regarding their Title IX claims. ECF
No. 109. On May 7, 2018, the Court held a hearing on that
motion, ECF No. 119, and on May 9, 2018 issued an order denying
that motion (“Partial Summary Judgment Order”), ECF. No. 120. In
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that order, the Court found there to be genuine dispute of
material fact regarding two of the Davis factors: whether the
Plaintiffs suffered “sexual harassment . . . that is so severe,
pervasive, and objectively offensive that it [could] be said to
deprive [them] of access to the educational opportunities or
benefits provided by the school,” Davis ex rel. LaShonda D. v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999), and whether
the Defendant was deliberately indifferent, id. See ECF No. 120
at 22–23, 45.
Following Plaintiffs’ filing of the June 4, 2018
Motion, Defendant filed a memorandum in opposition on June 15,
2018. ECF No. 131 (“Opp.”). On July 2, 2018, Plaintiffs filed a
reply memorandum in support of their June 4, 2018 Motion. ECF
No. 136 (“Reply”).
It appears to the Court that a hearing in this matter
is neither necessary nor appropriate. See Local Rule 7.2(d).
After reviewing the briefing and relevant authorities, the Court
hereby denies Plaintiffs’ motion.
DISCUSSION
Plaintiffs contend that the Court should permit them
to file an interlocutory appeal under 28 U.S.C. § 1292(b); they
ask in their Motion that the Partial Summary Judgment Order be
amended to state that the necessary conditions for interlocutory
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review have been met and that the remainder of the case be
stayed pending appeal. June 4, 2018 Mot. at 1.
Courts have explained that a “movant seeking an
interlocutory appeal [under 28 U.S.C. § 1292(b)] has a heavy
burden to show that exceptional circumstances justify a
departure from the basic policy of postponing appellate review
until after the entry of a final judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475 (1978) (internal quotation marks and
citation omitted); see also James v. Price Stern Sloan, Inc.,
283 F.3d 1064, 1067 n.6 (9th Cir. 2002) (“Section 1292(b) is a
departure from the normal rule that only final judgments are
appealable, and therefore must be construed narrowly.”); Du
Preez v. Banis, No. CIV. 14-00171 LEK-RLP, 2015 WL 857324, at *1
(D. Haw. Feb. 27, 2015) (collecting cases). Certification for
interlocutory appeal under § 1292(b) is only appropriate where:
(1) The order involves a controlling question of law; (2) a
substantial ground for difference of opinion exists as to that
question; and (3) an immediate appeal from the order may
materially advance the ultimate termination of the litigation.
I.
Whether the Partial Summary Judgment Order Involves a
Controlling Question of Law
At the outset, the Court notes that Plaintiffs’
arguments in support of the June 4, 2018 Motion seem to center
around Plaintiffs’ disagreement with the substance of the
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Court’s decision to deny them partial summary judgment. Given
the adverseness of that decision to Plaintiffs’ interests, such
disagreement is perhaps understandable—but § 1292(b) is not a
vindicatory vehicle for mere difference of opinion or an
opportunity for a “do-over” after an unfavorable result.1
Rather, litigants seeking the certification of an order for
interlocutory appeal must at the outset identify a controlling
question of law involved in the at-issue order. See § 1292(b).
This Plaintiffs have failed to do.
A question of law is controlling if the resolution of
the issue on appeal could “materially affect the outcome of
litigation in the district court.” In re Cement Antitrust
Litig., 673 F.2d 1020, 1026 (9th Cir. 1981), aff’d sub nom.
Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983) (citation
omitted). A “question of law” under § 1292(b) means a “pure
question of law” rather than a mixed question of law and fact or
the application of law to a particular set of facts.2 Chehalem
1
The Court notes that, if Plaintiffs believed the Court to have
committed a “[m]anifest error of law or fact” in its Partial
Summary Judgment Order, they were permitted by Local Rule 60.1
to move on that basis for reconsideration of the order within
fourteen days of the written order’s filing. Plaintiffs made no
such motion.
2
Questions of law appropriate for interlocutory appeal include,
for example, “‘the determination of who are necessary and proper
parties, whether a court to which a cause has been transferred
has jurisdiction, or whether state or federal law should be
applied.’” In re Cement Antitrust Litig., 673 F.2d at 1026–27
(Continued . . .)
4
Physical Therapy, Inc. v. Coventry Health Care, Inc., No. 09-CV320-HU, 2010 WL 952273, at *3 (D. Or. Mar. 10, 2010) (collecting
cases); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251,
1259 (11th Cir. 2004) (Section “1292(b) appeals were intended,
and should be reserved, for situations in which the court of
appeals can rule on a pure, controlling question of law without
having to delve beyond the surface of the record in order to
determine the facts”); Ahrenholz v. Bd. of Trs., 219 F.3d 674,
677 (7th Cir. 2000) (stating that a question of law is one that
presents an abstract legal issue that can be decided “quickly
and cleanly without having to study the record”).
Plaintiffs contend that “there is a controlling
question of law whether the undisputed facts on their own
require a favorable finding on each element, without regard to
the disputed facts.” Reply at 2; see also June 4, 2018 Mot. at 4
(“As a matter of law, there is a substantial difference of
opinion as to whether the other two elements of the Title IX
(quoting United States v. Woodbury, 263 F.2d 784, 787 (9th Cir.
1959)). See, e.g., Hawaii ex rel. Louie v. JP Morgan Chase &
Co., 921 F. Supp. 2d 1059, 1066 (D. Haw. 2013) (finding a
controlling question of law where a party challenged the court’s
reading of United States Supreme Court precedents); Leite v.
Crane Co., No. CIV. 11-00636 JMS-RLP, 2012 WL 1982535, at *6 (D.
Haw. May 31, 2012) (finding the issue of what “evidentiary
burden a defendant must carry in establishing a colorable
federal defense” to be a controlling question of law).
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[sic] likewise should have been found.”).3 As noted above,
Plaintiffs’ overarching argument appears to come down to raw
disagreement with the Court’s decision to deny them partial
summary judgment. See, e.g., Reply at 4 (“[N]o reasonable factfinder could have found that the harassment was not severe,
pervasive, and objectively offensive.”). Far from posing any
pure or abstract questions of law, Plaintiffs would seek
interlocutory appeal regarding the application of law to a
particular set of facts, and specifically the manner in which
this Court applied Title IX and related case law to the facts
before it on summary judgment. But “Section 1292(b) was not
designed to secure appellate review of ‘factual matters’ or of
the application of the acknowledged law to the facts of a
particular case, matters which are within the sound discretion
of the trial court.” Hulmes v. Honda Motor Co., 936 F. Supp.
195, 210 (D.N.J. 1996), aff'd, 141 F.3d 1154 (3d Cir. 1998)
(citation omitted); see also Ahrenholz, 219 F.3d at 677
(“‘[Q]uestion of law’ means an abstract legal issue rather than
an issue of whether summary judgment should be granted.”).
3
The Court declines to consider those of Plaintiffs’ arguments
raised for the first time in their Reply. See Zamani v. Carnes,
491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not
consider arguments raised for the first time in a reply brief.”)
(citation omitted).
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Plaintiffs’ fact-bound line of inquiry is plainly not
adherent to § 1292(b)’s requirement that an order certified for
interlocutory appeal involve a “controlling question of law,”
and nor does the Court perceive any other controlling question
of law in its Partial Summary Judgment Order. An interlocutory
appeal from that order is therefore inappropriate.
II.
Whether a Substantial Ground for Difference of Opinion
Exists
There is a “substantial ground for difference of
opinion” if there is a genuine dispute over the question of law
that is the subject of the appeal. In re Cement Antitrust
Litig., 673 F.2d at 1026; see also Couch v. Telescope, Inc., 611
F.3d 629, 633 (9th Cir. 2010) (“To determine if a ‘substantial
ground for difference of opinion’ exists under § 1292(b), courts
must examine to what extent the controlling law is unclear.”).
Absent a controlling question of law, Plaintiffs
necessarily cannot make the requisite showing that any
“substantial ground for a difference of opinion” exists over the
question of law at issue. See In re Cement Antitrust Litig., 673
F.2d at 1026; Couch, 611 F.3d at 633.
III. Whether the Proposed Interlocutory Appeal Will Materially
Advance the Ultimate Termination of the Litigation
A district court generally should not permit an
interlocutory appeal where doing so would prolong litigation
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rather than advance its resolution. Fenters v. Yosemite Chevron,
761 F. Supp. 2d 957, 1005 (E.D. Cal. 2010). Courts within the
Ninth Circuit have held that resolution of a question materially
advances the termination of litigation if it “facilitate[s]
disposition of the action by getting a final decision on a
controlling legal issue sooner, rather than later [in order to]
save the courts and the litigants unnecessary trouble and
expense.” See United States v. Adam Bros. Farming, Inc., 369 F.
Supp. 2d 1180, 1182 (C.D. Cal. 2004); see also In re Cement
Antitrust Litig., 673 F.2d at 1026 (stating that § 1292(b) is
used “only in exceptional situations in which allowing an
interlocutory appeal would avoid protracted and expensive
litigation”).
In light of the fact that the parties are scheduled to
go to trial on October 2, 2018—i.e., in less than three months’
time—the Court cannot help but conclude that interlocutory
appeal from its Partial Summary Judgment Order would prolong
this litigation rather than advance its resolution. In any case,
as with the issue of whether a substantial ground for difference
of opinion exists, the question of whether interlocutory appeal
would materially advance the ultimate termination of this
litigation is mooted by the absence of a controlling question of
law.
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CONCLUSION
For the foregoing reasons, the Court DENIES
Plaintiffs’ Motion for Interlocutory Appeal and for Stay Pending
that Appeal, ECF No. 124.
IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, July 16, 2018.
________________________________
Alan C. Kay
Sr. United States District Judge
K.S-A v. Hawai‘i, Dept. of Educ., Civ. No. 16-00115 ACK-KJM, Order Denying
Plaintiffs’ Motion for Interlocutory Appeal and for Stay Pending that Appeal.
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