Williams v. Taylor et al

Filing 66

ORDER AND REASONS denying 36 Motion for Certification for Interlocutory Appeal and Stay of Proceedings; granting in part and denying in part 40 Motion for Rule 54(b)Certification or, in the alternative, an Amendment of the Order and Reasons. The Order and Reasons 32 is amended to reflect that Price and Progressive are dismissed without prejudice. Signed by Judge Helen G. Berrigan on 8/10/2015. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PATRICIA WILLIAMS

CIVIL ACTION

VERSUS

NO. 15-321

FREDDIE TAYLOR, ET AL

SECTION “C”

ORDER AND REASONS
Before the Court is plaintiff’s Motion for Certification for Interlocutory Appeal Pursuant
to 28 U.S.C. 1292(b) and Stay of Proceedings, as well as plaintiff’s Motion to Amend/Correct
the Court’s Order on Motion to Remand and Order on Motion to Dismiss. Rec. Docs. 36, 40.
Defendants oppose the motions. Rec. Doc. 47. The motion is under consideration on the briefs
and without oral argument. For the reasons discussed herein, the Court DENIES the Motion for
Certification for Interlocutory Appeal and GRANTS IN PART and DENIES IN PART the
Motion to Amend.

I.

Factual and Procedural Background
Plaintiff, Patricia Williams, was involved in an automobile accident on February 28,

2013. Plaintiff was a passenger in a car being driven by Sharita Price (“Price”) when plaintiff
claims it collided with a tractor-trailer driven by Freddie Taylor (“Taylor”). On

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January 17, 2014, plaintiff filed a suit for damages in state court against Taylor and his
employer, B.A.H. Express, Inc. (“BAH”), and insurer, Westfield Insurance Company
(“Westfield”), as well as Price and her insurer, Progressive Security Insurance Company
(“Progressive”). Rec. Doc. 1-5. Defendants subsequently removed the case to federal court,
claiming that Williams had fraudulently joined Price in an effort to frustrate federal diversity
jurisdiction. Rec. Doc. 1. Plaintiff moved to remand the action on March 2, 2015. Rec. Doc. 6.
On April 2, Price and her insurer, Progressive, filed a motion to dismiss, also arguing that they
had been fraudulently joined to the action. Rec. Doc. 19. On April 30, 2015, the Court issued its
Order and Reasons finding that it had jurisdiction over the action, denying the motion to remand
and dismissing Sharita Price and Progressive from the action. Rec. Doc. 32.
Plaintiff now moves the Court to certify its Order and Reasons for interlocutory appeal to
the United States Court of Appeal for the Fifth Circuit, asking that the Court amend the Order
and Reasons to state that its decision “involves controlling questions of law, as to which there is
substantial ground for difference of opinion” and that “an immediate appeal may materially
advance the ultimate termination of the litigation.” Rec. Doc. 36-1 at 1. Plaintiff also moves the
Court to certify its Order and Reasons as a final judgment under Rule 54(B) or, alternatively
requests that the Court amend its Order and Reasons to reflect a dismissal of Price and
Progressive “without prejudice.” Rec. Doc. 40-1.

II.

Law and Analysis
Under 28 U.S.C. §1292 (b), permissive interlocutory appeal may be taken from an order

not otherwise appealable when the district judge is:

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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.
If these conditions are met, then the Court of Appeals may permit an appeal at its discretion. Id.
These terms, and the mechanism for achieving such an interlocutory appeal, are also reflected in
Federal Rule of Appellate Procedure 5 (3).
Plaintiff claims that several controlling questions of law exist that implicate “substantial
grounds for difference of opinion.” First, plaintiff contends that the Court’s dismissal of Price
and Progressive has prejudiced the plaintiff because she has not been given an opportunity to
conduct discovery on the matter of Price’s fault in the accident. Rec. Doc. 36-1 at 7. Plaintiff
also argues that defendants did not show bad faith or a complete lack of possibility against Price
to justify its argument that Price had been fraudulently joined. Id. at 9. For these same reasons,
plaintiff asserts that Price and Progressive should not have been dismissed from the action. Id. at
13-14.
Defendants counter that plaintiff has not identified a controlling question of law that
would justify interlocutory appeal in this instance, but instead takes issue with the Court’s
decision not to allow further discovery and with its weighing of the evidence in the record
regarding plaintiff’s claims against Price. Rec. Doc. 47 at 4-5. Defendants also argue that there is
no substantial ground for difference of opinion, as there is no significant discrepancy between
how Louisiana federal district courts decide the issue of improper joinder. Id. at 7. Finally,
defendants claim that an immediate appeal would not materially advance the termination of the
litigation, but would only determine in which forum the case is ultimately tried. Id. at 7-8.
The Court finds that its Order and Reasons do not implicate a controlling question of law
as contemplated by 28 U.S.C. §1292 (b). Multiple circuits have specified that a controlling

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question of law must refer to a “pure question of law”—one that the “court of appeals could
decide quickly and cleanly without having to study the record.” Ahrenholz v. Board of Trustees
of University of Illinois, 219 F.3d 674, 677 (7th Cir. 2000). See also, Link v. Mercedes-Benz of
North America, Inc., 550 F.2d 860, 863 (3d Cir. 1977) (“28 U.S.C. §1292(b) is not designed for
review of factual matters but addresses itself to a ‘controlling question of law.’”). Here,
plaintiff’s motion focuses on the Court’s evaluation of the evidence and pleadings, arguing for
example that “defendants have failed to show that Plaintiff acted in bad faith. . .” and “cannot
overcome the ‘heavy burden’ required to prove bad faith.” Rec. Doc. 36-1 at 10 (emphasis in
original). Indeed, the bulk of plaintiff’s briefing on this point is devoted to arguing that the Court
incorrectly weighed the evidence before it, and should have allowed further discovery to be
taken. Id. at 6-14. Plaintiff has not identified a question of law whose immediate appeal would
materially advance the litigation. Thus, the standards for certifying an interlocutory appeal
pursuant to 28 U.S.C. §1292 (b) have not been met, and the motion for certification for
interlocutory appeal must be denied.
Plaintiff has also moved for the Court to certify its Order and Reasons as a final judgment
under Rule 54(B) or, in the alternative, to amend its Order and Reasons to reflect dismissal of
Price and Progressive “without prejudice,” so that plaintiff may bring these parties back into the
suit should discovery disclose evidence of Price’s negligence. Rec. Doc. 40-1 at 1, 7. The Court
finds that an amendment to its Order and Reasons to dismiss Price and Progressive “without
prejudice” is appropriate. One of the reasons plaintiff purports to be unable to present evidence
of Price’s fault is Taylor’s failure to appear for his own deposition. Rec. Doc. 36-1. Although
plaintiff failed to avail herself of other remedies to ensure Taylor’s appearance for deposition,
defendants should nonetheless not be permitted to advance a theory that may hinge in part on

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Taylor’s failure to fulfill his obligations as a litigant. Therefore, the Court hereby amends its
Order and Reasons to dismiss Price and Progress without prejudice. Should further discovery
produce evidence showing that plaintiff may plausibly recover from these parties, then plaintiff
may seek to join them to the action at that time. Having determined that amendment is
appropriate, the Court finds that the remaining relief sought by plaintiff under Rule 54(B) is
moot.

III.

Conclusion
Accordingly, IT IS ORDERED that plaintiff’s Motion for Certification for Interlocutory

Appeal Pursuant to 28 U.S.C. 1292 (b) and Stay of Proceedings (Rec. Doc. 36) is DENIED. IT
IS FURTHER ORDERED that plaintiff’s Motion for Rule 54(B) Certification or, in the
Alternative, an Amendment of the Order and Reasons (Rec. Doc. 40) is GRANTED IN PART
and DENIED in PART. The Order and Reasons (Rec. Doc. 32) is amended to reflect that Price
and Progressive are dismissed without prejudice.
New Orleans, Louisiana this 10th day of August, 2015

____________________________________
UNITED STATES DISTRICT JUDGE

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