WINE & CANVAS DEVELOPMENT LLC v. WEISSER et al
ENTRY on Emergency Motion for Certificate of Appealability and Stay - Wine & Canvas' Emergency Motion for Certificate of Appealability and Stay (Filing No. 372 ) is DENIED. Signed by Judge Tanya Walton Pratt on 10/20/2014. (TRG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
WINE & CANVAS DEVELOPMENT LLC,
THEODORE WEISSER, CHRISTOPHER
MUYLLE, YN CANVAS CA, LLC doing
business as WWW.ART-UNCORKED.COM.
doing business as ART UNCORKED,
WEISSER MANAGEMENT GROUP, LLC,
WINE & CANVAS DEVELOPMENT LLC,
Third Party Plaintiff,
TAMARA SCOTT, DONALD MCCRACKEN,
and ANTHONY SCOTT,
Third Party Defendants.
Case No. 1:11-cv-01598-TWP-DKL
ENTRY ON EMERGENCY MOTION FOR CERTIFICATE
OF APPEALABILITY AND STAY
This matter is before the Court on Plaintiff’s and Third Party Defendants’, Wine & Canvas
Development LLC (“Wine & Canvas”), Tamara Scott (“Ms. Scott”), Donald McCracken (“Mr.
McCracken”), and Anthony Scott (“Mr. Scott”) (collectively, “Wine & Canvas”), Emergency
Motion for Certificate of Appealability and for Stay (Filing No. 372). For the following reasons,
the Motion is DENIED.
This trademark infringement action is set for trial on November 17, 2014. On August 15,
2014, the Court entered its ruling on summary judgment dismissing several of Wine & Canvas’
claims and limiting the scope of the remaining claims. On September 2, 2014, Wine & Canvas
filed its motion in limine. Thereafter, on September 18, 2014, Wine & Canvas filed a motion to
reconsider the Court’s ruling on summary judgment. The Court denied the motion to reconsider
and motion in limine On October 9, 2014. Wine & Canvas now seeks, one month before trial, an
emergency interlocutory appeal and stay of the trial.
Interlocutory appeals are governed by 28 U.S.C. § 1292(b). Under section 1292(b), a
district court may certify an interlocutory order for immediate appeal whenever the order: (1)
involves a controlling question of law, (2) as to which there is substantial ground for difference of
opinion, and (3) an immediate appeal from the order may materially advance the ultimate
termination of the litigation. In other words, to grant a petition for interlocutory review, “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 Trust. of the Univ. of Ill., 219 F.3d 674,
675 (7th Cir. 2002) (emphasis in original). Importantly, each criterion must be met.
It is clear that certifying the Court’s rulings on summary judgment, reconsideration, and in
limine fails to meet the exacting standard under 28 U.S.C. § 1292(b) and Seventh Circuit precedent.
As for the interlocutory appeal of the Courts’ ruling made on the motions in limine, this ruling is
preliminary in nature and not subject to appeal. As stated in the Entry on Pending Motions, “denial
of a motion in limine does not necessarily mean that all evidence contemplated by the motion is
admissible; rather it only means that, at the pretrial stage, the Court is unable to determine whether
the evidence should be excluded.” Filing No. 367 at EFC p. 5. And, the Court noted “If Wine and
Canvas believes it has an admissible purpose for such evidence, it must first approach the bench
and, if necessary, the issue will be decided outside the presence of the jury.” Filing No. 367 at
EFC p. 8-9.
To certify a matter for interlocutory appeal, there must be a pure question of controlling
law. The Seventh Circuit has defined this as “a question of the meaning of a statutory or
constitutional provision, regulation, or common law doctrine.” Ahrenholz. at 676. Wine & Canvas
has identified “questions of law” including: (1) “Whether a District Court has authority to enter
summary judgment based on the failure of a party to address elements of a particular claim that
were never raised by the opposing party; or alternatively, whether WNC was ever place[d] on
notice that it had to come forward with evidence as to elements not raised by Muylle[,]” Filing
No. 372, at ECF p. 2; (2) “Whether, in order for an alleged infringer to set forth a prima facie
affirmative defense of implied consent, the alleged infringer must demonstrate that [ ] it would be
‘prejudicial’ for him to have to defend against a trademark infringement claim by designating
evidence that he ‘detrimentally relied’ upon some act of WNC that amounted to an ‘assurance’
that [ ] the alleged infringer would not be sued for trademark infringement[,]” Filing No. 372, at
ECF p. 4-5; and (3) “Whether a movant is precluded from the relief afforded under F.R.C.P.
37(c)(1) in situations involving the non-production of certain documents where said movant’s prior
request to compel said documents was denied[,]” Filing No. 372 at 5-6. None of these questions
set forth a question of “a statutory or constitutional provision, regulation, or common law doctrine”
that is controlling. See Ahrenholz, 219 F.3d at 676.
To clarify why these questions are not enough, the Seventh Circuit has explained that:
Formally, an appeal from the grant or denial of summary judgment presents a
question of law (namely whether the opponent of the motion has raised a genuine
issue of material fact), which if dispositive is controlling; and often there is room
for a difference of opinion. So it might seem that the statutory criteria for an
immediate appeal would be satisfied in every case in which summary judgment was
denied on a nonobvious ground. But that cannot be right. Section 1292(b) was not
intended to make denials of summary judgment routinely appealable . . . .
Id. The Court went on to say that “[w]e think [the framers of § 1292(b)] used ‘question of law’ in
much the same way a lay person might, as referring to a ‘pure’ question of law rather than merely
to an issue that might be free from a factual contest.” Id. at 676–77. Here, Wine & Canvas’
“questions of law” would require the Seventh Circuit to “hunt[ ] through the record compiled in
the summary judgment proceeding to see whether there may be a genuine issue of material fact
lurking there.” Id. at 677. This is not a situation where the Seventh Circuit “could decide quickly
and cleanly without having to study the record.” Id. Therefore, Wine & Canvas has not established
the first factor.
Because the factors are “conjunctive, not disjunctive,” id. at 676, Wine & Canvas’ Motion
fails for lack of a pure question of controlling law. However, the Court also notes that while the
issues might be contestable, an interlocutory appeal would not speed up the litigation in this case.
To the contrary, a stay and interlocutory appeal will drag out litigation that has been underway for
three years with a trial only one month away. The speediest and most efficient use of resources is
to continue with the scheduled trial.
Accordingly, Wine & Canvas’ Emergency Motion for Certificate of Appealability and Stay
(Filing No. 372) is DENIED.
25 Rodeo Avenue, Apt. 2
Sausalito, California 94965
P. Adam Davis
DAVIS & SARBINOFF LLP
Carol Nemeth Joven
PRICE WAICUKAUSKI & RILEY
Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY
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