Great Lakes Communication Corporation v. AT&T Corp

Filing 217

MEMORANDUM Opinion and Order denying in its entirety 212 Motion to Reconsider 183 Memorandum Opinion and Order or, in the Alternative, Motion for Certificate of Appealability and for Stay Pending Appeal by Plaintiff Great Lakes Communication Corporation. Signed by Judge Mark W Bennett on 10/7/2015. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
GREAT LAKES COMMUNICATION
CORPORATION,
No. C 13-4117-MWB
Plaintiff,
vs.
AT&T CORPORATION,
Defendant.

MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFF’S
MOTION TO RECONSIDER
REFERRAL TO FCC OR, IN THE
ALTERNATIVE, TO CERTIFY THE
REFERRAL ORDER FOR
INTERLOCUTORY APPEAL AND
FOR A STAY PENDING APPEAL
___________________________

This case is before me on plaintiff GLCC’s September 9, 2015, Motion To
Reconsider Or, In The Alternative, To Certify For Interlocutory Appeal And For Stay
Pending Appeal (docket no. 212). The order that GLCC asks me to reconsider, certify
for interlocutory appeal, and stay is my June 29, 2015, Memorandum Opinion And Order
Regarding Referral To The FCC Under The Primary Jurisdiction Doctrine (Referral
Order) (docket no. 183).

Defendant AT&T filed its Opposition (docket no. 214),

opposing GLCC’s Motion in its entirety, on September 28, 2015. I conclude that GLCC
is not entitled to any of the relief that it requests in its Motion.
First, as AT&T argues, I do not have jurisdiction to reconsider the Referral Order,
where GLCC filed a Notice Of Appeal (docket no. 210) concerning that Referral Order
on August 28, 2015, prior to filing its Motion To Reconsider that Referral Order on
September 9, 2015. See State ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102,
1106 (8th Cir. 1999) (“Once a notice of appeal is filed, the district court is divested of

jurisdiction over matters on appeal. For example, while an appeal is pending, the district
court may not reexamine or supplement the order being appealed.” (internal citations
omitted)); Liddell v. Board of Educ., 73 F.3d 819, 822–23 (8th Cir. 1996) (as a general
rule, once a notice of appeal is filed, the district court has no jurisdiction to reconsider
its prior decision); see also International Bhd. of Elec. Workers, Local Union No. 545
v. Hope Elec. Corp., 380 F.3d 1084, 1107 (8th Cir. 2004) (explaining that, when counsel
was unable to file a motion to reconsider electronically, because the electronic system
purportedly was not working properly, counsel could have manually filed the motion to
reconsider, rather than electronically filing a notice of appeal, which divested the district
court of jurisdiction); Von Kahl v. United States, 242 F.3d 783, 787 (8th Cir. 2001)
(considering claims first made in a motion to reconsider that was filed after the movant’s
notice of appeal “to be dead on arrival” (citing Liddell, 73 F.3d at 822-23)). GLCC’s
appeal is not so patently “frivolous” that I may simply proceed with the case,
notwithstanding GLCC’s Notice Of Appeal. See id.
Second, even if I were convinced that I had jurisdiction to consider GLCC’s
Motion To Reconsider, I would not grant GLCC any relief on reconsideration. GLCC
has shown me nothing that would convince me that my Referral Order was manifestly
erroneous as a matter of fact or law. See Bradley Timberland Resources v. Bradley
Lumber Co., 712 F.3d 401, 407 (8th Cir. 2013) (“A motion for reconsideration ‘serve[s]
the limited function of correcting manifest errors of law or fact or . . . present[ing] newly
discovered evidence’ after a final judgment.” (quoting United States v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006), with citations and quotation marks
omitted)). Rather, GLCC simply rehashes arguments that I have already rejected or—at
most—cites additional authorities that it contends support its prior arguments.
Third, I do not agree with GLCC that my Referral Order is appropriate for
interlocutory appeal. A district court may certify an order for interlocutory appeal under
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28 U.S.C. § 1292(b) only where “it is of the opinion that (1) the order involves a
controlling question of law; (2) there is substantial ground for difference of opinion; and
(3) certification will materially advance the ultimate termination of the litigation.” Union
Cnty., Iowa v. Piper Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir. 2008) (per curiam)
(internal quotation marks omitted). These requirements are jurisdictional, and the court
cannot allow an interlocutory appeal unless each of them is met. Id. at 645–46. As
AT&T contends, the Referral Order did not involve a controlling question of law; rather,
it involved the question of whether to refer to the FCC controlling questions of law,
policy, and technical construction. GLCC’s failure to satisfy the first requirement dooms
its request for certification of an interlocutory appeal. Id.
Finally, where I find that certification of an interlocutory appeal is inappropriate,
there is no basis for a stay of proceedings pending such an appeal.
THEREFORE, plaintiff GLCC’s September 9, 2015, Motion To Reconsider Or,
In The Alternative, To Certify For Interlocutory Appeal And For Stay Pending Appeal
(docket no. 212) is denied in its entirety.
IT IS SO ORDERED.
DATED this 7th day of October, 2015.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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