Moultrie v. Penn Aluminum International, LLC

Filing 198

ORDER denying 132 MOTION to Certify Order Pursuant to Rule 54(b) and Alternatively, Pursuant to Section 1292(b) filed by Levia Moultrie. Signed by Chief Judge David R. Herndon on 11/30/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEVIA MOULTRIE,
Plaintiff,
v.
PENN ALUMINUM INTERNATIONAL,
LLC,
Defendant.

No. 11-cv-500-DRH
ORDER

HERNDON, Chief Judge:
Before the Court is plaintiff Levia Moultrie’s motion to certify order in multiple
claim case and alternative motion to certify order due to controlling question of law
(Doc. 132). Specifically, plaintiff ask the Court amend this Court’s order of dismissal
of Count IV of plaintiff’s first amended complaint to either include Federal Rule of
Civil Procedure 54(b)’s “no just reason for delay” language or 28 U.S.C. § 1292's
“controlling question of law” language. For the reasons that follow, plaintiff’s motion
to certify (Doc. 132) is denied.
I. Federal Rule of Civil Procedure 54(b)
Rule 54(b) permits a district court, in a case involving multiple claims or
parties, to “direct entry of a final judgment as to one or more, but fewer than all, [of
the] claims or parties only if the court expressly determines that there is no just
reason for delay.” FED. R. CIV. P. 54(b). Whether to enter final judgment under Rule
54(b) is left within the sound discretion of the district court. See U.S. v. Ettrick
Woods Prods., Inc., 916 F.2d 1211, 1218 (7th Cir. 1990); Curtiss-Wright Corp. v.
Page 1 of 5

Gen. Elec. Co., 446 U.S. 1, 8, 100 S. Ct. 1460, 1465 (1980). Rule 54(b) should not,
however, be used to accommodate a lawyer who wants to appeal, but rather should
be carefully considered as the rule departs from the normal course of litigation.
Ettrick Woods Prods., Inc., 916 F.2d at 1218. The Court must determine if an
immediate appeal is appropriate. Id. In deciding whether entering a final judgment
under Rule 54(b) is appropriate, the claim at issue must be separate from the
remaining claims in the litigation, “separate not in the sense of arising under a
different statute or legal doctrine . . . but in the sense of involving different facts.” Ty,
Inc. v. Publ’ns Intern. Ltd., 292 F.3d 512, 515 (7th Cir. 2002) (collecting cases); see
also Layers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1162 (7th Cir.
1997) (stating that the test for determining whether a claim is separate from
remaining claims is whether the claim at issue is so overlapped with the remaining
claims that if the remaining claims go on appeal at the end of matter, the appellate
court would be reviewing the same material as with the claim at issue).
Plaintiff contends that Rule 54(b) allows appeal of the claim in this case as,
although proof of the violation will be shown on the same facts as other claims, it is
sufficiently independent of unadjudicated matters and the issues at stake on this legal
question do not hinder proof of the other claims such that issues will be visited twice
on appeal. The Court disagrees.
As plaintiff readily admits, the facts underlying the retained and dismissed
claims are “basically identical.” See Jack Walters & Sons Corp. v. Morton Bldg. Inc.,
737 F.2d 698, 702 (7th Cir.1984) (“[I]f there is a great deal of factual overlap between
Page 2 of 5

the decided and the retained claims they are not separate, and appeal must be
deferred till the latter are resolved.”). Thus, the Court finds that an appeal in this
case is not appropriate, but is actually best left until the end of the case when a
determination as to whether an appeal is necessary can be adequately decided by the
parties. See Ettrick Wood Prods., Inc., 916 F.2d at 1218 (stating that the normal
course of litigation allows for an appeal at the end of the case and process should not
disrupted unless the district court determines that an immediate appeal is
appropriate). Simply because plaintiff desires to appeal in hopes of being able to
seek additional damages under the same facts is not enough to depart from the norm
and would result in a duplication of the efforts required for each appeal. Accordingly,
the motion to certify order under Rule 54(b) is denied.
II. 28 U.S.C. § 1292(b)
Pursuant to 28 U.S.C. § 1292(b):
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. The Court of Appeals which
would have jurisdiction of an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order . .
..
Certificates of appealability, as a general matter, are “disfavored” because they
“frequently cause unnecessary delays in lower court proceedings and waste the
resources of an already overburdened judicial system.

Page 3 of 5

For these reasons, the

preferred practice is to defer appellate review until the entry of a final judgment . . .
.” Herdrich v. Pegram, 154 F.3d 362, 368 (7th Cir. 1998) (citing Coopers & Lybrand
v. Livesay, 437 U.S. 463, 473-74 (1978)) (citation omitted). There are four statutory
criteria that should guide a district court’s decision regarding whether to grant a
motion for an interlocutory appeal: “there must be a question of law, it must be
controlling, it must be contestable, and its resolution must promise to speed up the
litigation.” Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir.
2000)).
Plaintiff argues that certification under § 1292(b) is proper as prompt
disposition of this controlling question of law will aid in complete resolution of the
matter and protect plaintiff’s rights.

Specifically, plaintiff contends that the

controlling question of law is whether the Illinois Human Rights Act (“IHRA”) allows
the tolling of the 90 day time limit for perfecting a state law claim while the EEOC
investigation is completed. The Court finds, however, that plaintiff’s claim fails as
plaintiff’s proposed question of law is not “controlling.”
Here, plaintiff’s proposed question of law is not controlling because its
resolution is not likely to affect the further course of the litigaiton. See Sokaogon
Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659 (7th Cir.
1996) (“A question of law may be deemed ‘controlling’ if its resolution is quite likely
to affect the further course of the litigation, even if not certain to do so.”). Even if
plaintiff was granted an appeal and succeeded, nothing about this case is going to
change. The same facts are at issue in this case with or without the IHRA claim, the
Page 4 of 5

only difference is the type of damages plaintiff may seek. Accordingly, because “the
criteria, are conjunctive and not disjunctive,” the Court having found that the first
criteria is not met, the Court need not consider the other factors. Ahrenholz, 219
F.3d at 676. Therefore, the Court denies the motion to certify based upon 28 U.S.C.
§ 1292(b).
III. Conclusion
For the reasons stated above, plaintiff’s motion to certify order is denied.
IT IS SO ORDERED.
Signed this 30th day of November, 2012.

David R.
Herndon
2012.11.30
14:54:00 -06'00'
Chief Judge
United States District Court

Page 5 of 5