Roy Ferrand et al vs. Tom Schedler, et. al.
Filing
228
ORDER AND REASONS denying 213 Motion for Certification of Judgment as Final and Appealable and for Stay of Enforcement Pending Appeal, as set forth in document. Signed by Judge Jane Triche Milazzo. (ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROY FERRAND, ET AL
*
CIVIL ACTION NO. 11‐926
Plaintiffs
*
*
SECTION: H
*
JUDGE JANE TRICHE MILAZZO
VERSUS
*
*
*
MAGISTRATE: 2
TOM SCHEDLER, ET AL
*
MAG. JOSEPH C. WILKINSON, JR.
Defendants *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
ORDER & REASONS
Before the Court is a Motion for Certification of Judgment as Final and Appealable and for
Stay of Enforcement Pending Appeal (Doc. 213) filed by all Defendants. For the following reasons
Defendants’ Motion is hereby DENIED.
BACKGROUND
On May 3, 2012, the Court entered an Order and Reasons denying Defendants’ Motions for
Partial Summary Judgment and granting, as amended, Plaintiffs’ Cross‐Motion for Summary
1
Judgment as to the statutory interpretation of the National Voter Registration Act (“NVRA”). (Doc.
212.) The Court deferred ruling on Plaintiffs Motion for Summary Judgment on the issue of the
violations of Defendants until July 11, 2012. (Id.)
Subsequently, on May 9, 2012, Defendants filed a Motion for Certification of this Court’s
May 3, 2012 Order as Final and Appealable and for Stay of Enforcement Pending Appeal. (Doc.
213.) Plaintiffs opposed this Motion on May 29, 2012. (Doc. 218.) Defendants filed a Reply Brief
(Doc. 221) and Plaintiffs filed a Sur‐Reply Brief (Doc. 224). The Motion was taken under submission
on June 6, 2012.
LAW & ANALYSIS
I.
Certification of Final Judgment Under Rule 54(b)
Defendants’ request for entry of final judgment under Rule 54(b) is denied. Defendants
argue that the following factors favor certification under either Federal Rule of Civil Procedure
54(b) or 28 U.S.C. §1292(b) of this Court’s May 3, 2012 Order and Reasons ‐ (i) the Order and
Reasons determined a discrete legal issue as to the interpretation of the NVRA; (ii) a final
determination of the legal issue is likely to facilitate the ultimate resolution of the litigation; (iii)
the Order and Reasons involve a controlling question of law to which there is a substantial ground
for difference of opinion; (iv) uniform application of the NVRA is critical within the Fifth Circuit and
nationwide; (v) the United States finds a resolution of this legal question compelling; (vi) the same
2
issue is pending and must be resolved in another court within the Fifth Circuit; (vii) appellate
resolution would facilitate settlement and could obviate the need for trial; (viii) once resolved by
the appellate court, this discrete legal issue would not have to be decided more than once even
if there were subsequent appeals; (ix) certification of final judgment serves the interest of the
parties and the administration of justice.
Plaintiffs argue that certification of final judgment under Rule 54(b) is inappropriate. They
assert that the Court’s Order and Reasons was only a partial ruling that did not fully resolve one
or more of the Plaintiffs’ claims and that Defendants have not demonstrated hardship that would
outweigh the costs of piecemeal appellate review.
A party may move for entry of final judgment under Federal Rule of Civil Procedure 54(b).
Rule 54(b) states:
When an action presents more than one claim for relief—whether as a claim, counterclaim,
crossclaim, or third‐party claim—or when multiple parties are involved, the court may
direct entry of a final judgment as to one or more, but fewer than all, claims or parties only
if the court expressly determines that there is no just reason for delay. Fed.R.Civ.P. 54(b).
According to the Fifth Circuit, “[o]ne of the primary policies behind requiring a justification for Rule
54(b) certification is to avoid piecemeal appeals.” PYCA Indus., Inc. v. Harrison Cnty. Waste Mgmt.,
81 F.3d 1412, 1421 (5th Cir. 1996). The Fifth Circuit further explained that Rule 54(b) judgments
are not favored and should be awarded only when necessary to avoid injustice: “A district court
should grant certification [in a Rule 54(b) case] only when there exists some danger of hardship or
3
injustice through delay which would be alleviated by immediate appeal; it should not be entered
routinely as a courtesy to counsel.” Id. (citing Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d
442, 445 (2d Cir.1985)).
The threshold inquiry for this Court is whether “there is no just reason for delay.” See
Ackerman v. FDIC, 973 F.2d 1221, 1224 (5th Cir. 1992). This determination is within the sound
discretion of the district court. Id. In making this determination, the district court must weigh “the
inconvenience and costs of piecemeal review” against “the danger of denying justice by delay . .
. .” Road Sprinkler Fitters Local Union v. Cont'l Sprinkler Co., 967 F.2d 145, 148 (5th Cir. 1992)
(quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950)).
The Court finds that the Defendants have not met their burden of showing that “hardship
or injustice” will result from an entry of a final judgment at the conclusion of these proceedings.
Specifically, Defendants have failed to convince the Court that any injustice that would result from
delaying the appeal outweighs the inconvenience and costs of piecemeal review. In addition to
the factors Defendants previously listed, they argue that settlement discussions can hardly proceed
when the parties are uncertain as to whether the NVRA includes remote transactions. This Court
notes, however, that a party’s willingness to settle a case after an interlocutory appeal is not a basis
for granting such an appeal under Rule 54(b). Accordingly, the Court denies Defendants’ Motion
for Certification of Judgment as Final and Appealable under Rule 54(b).
4
II.
Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b)
Alternatively, Defendants ask the Court to certify the Order for interlocutory appeal under
28 U.S.C. § 1292(b). The Court denies this request.
Defendants recite the same nine factors as argument for approving an immediate
interlocutory appeal under §1292(b). Plaintiffs argue, however, that certification of interlocutory
appeal under 28 U.S.C. §1292(b) is inappropriate as the three factors required under the statute
cannot be met. They contend that a controlling question of law is not involved because reversal
would not terminate this litigation, that there is no substantial ground for difference of opinion
because there is no case law contrary to this Court’s Order and Reasons, and that immediate
appeal would not materially advance the ultimate termination of the litigation but rather would
prolong the proceedings.
28 U.S.C. § 1292 allows for interlocutory appeal of orders without directing entry of a final
judgment on the order. 28 U.S.C.A. § 1292(b)(West 2012). For an interlocutory order to be
appealable pursuant to the statute, three conditions must be satisfied. The trial judge must certify
in writing that the order: (1) involves a controlling question of law, (2) substantial ground for
difference of opinion on that question of law exists, and (3) immediate appeal from the order may
“materially advance the ultimate termination of [the] litigation.” Id; Anderson v. Jackson, No. 06‐
3298, 2007 WL 4414479, at *3 (E.D.La. Dec. 14, 2007). The moving party carries the burden of
showing the necessity of interlocutory appeal. Chauvin v. State Farm Mut. Auto. Ins. Co., Nos. 06‐
5
7145, 06‐8769, 2007 WL 4365387, at *2 (E.D.La. Dec. 11, 2007). Interlocutory appeals are
“exceptional” and should not be granted “simply to determine the correctness of a judgment.” Id.
(quoting Clark‐Dietz & Assocs.‐Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68‐69 (5th Cir. 1983)).
The Court finds that Defendants have not met their burden of showing that interlocutory
appeal is appropriate. First, “a question of law is controlling if reversal would terminate the
litigation.” Decena v. Am. Int’l Cos., No. 11‐1754, 2012 WL 1640455, at *2 (citing Breeden v.
Transocean Offshore Ventures, No. 00‐2561, 2001 WL 125343, at *1). While the Court’s previous
Order related to the application of the NVRA to remote transactions, a reversal would not
terminate this litigation, as Plaintiffs’ Complaint contains allegations that relate to in‐person
transactions as well as the amount of assistance that is being provided during both in‐person and
remote transactions. These allegations must be litigated to a final judgment regardless of any
interlocutory appeal.
Next, “ the mere fact that a party disagrees with the district court’s ruling is insufficient to
establish that there is a substantial ground for a difference of opinion.” Southern U.S. Trade Ass’n
v. Unidentified Parties, No. 10‐1669, 2011 WL 2790182, at *2 (E.D. La. 2011). While such a
circumstance can arise if novel or difficult questions of first impression are presented, simply being
the first court to rule on a question does not qualify the issue as one over which there is substantial
disagreement. Ryan v. Flowserve Corp., 444 F.Supp.2d 718, 723‐724 (N.D. Tex. 2006). Additionally,
6
the only other Court that has ruled on this issue has interpreted the NVRA similarly. See Ga. State
Conf. of the NAACP v. Kemp, No. 1:11‐CV‐1849‐CAP, 2012 U.S. Dist. LEXIS 14326 (N.D. Ga. 2012).
Accordingly, Defendants have not satisfied their heavy burden of demonstrating the existence of
“substantial” disagreement with this Court’s previous Order.
Lastly, “in determining whether certification will materially advance the ultimate
termination of the litigation, the district court considers whether it will eliminate the need for trial,
eliminate complex issues, or streamline issues to simplify discovery.” In re Stewart, No. 09‐3521,
2009 WL 2461672, at *2 (citing In re Babcock & Wilcox Co., No. 00‐1154, 2000 WL 823473 at *2).
While Defendants claim that certification of interlocutory appeal would be likely to facilitate a
resolution to the litigation, this Court does not agree with these unsubstantiated assertions.
In conclusion, this Court finds that Defendants have not satisfied their heavy burden of
demonstrating that the requirements of Section 1292(b) have been met. “As the movants,
[defendants] bear the burden of showing that an immediate appeal from the order would
materially advance the ultimate termination of the litigation.” Caruso v. Allstate Ins. Co., No. 06‐
2613, 2007 WL 1466824, at *2 (E.D.La. 2007). Defendants have not done so in this case.
CONCLUSION
For the foregoing reasons Defendant’s Motion for Certification of Judgment as Final and
Appealable and for Stay of Enforcement Pending Appeal (Doc. 213) is hereby DENIED.
7
New Orleans, Louisiana, on this 8th day of June, 2012.
___________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?