Ferguson v. Swift Transportation Co of Arizona et al

Filing 364

MEMORANDUM ORDER denying 342 MOTION for Certificate of Appealability filed by Tony Ferguson. Signed by Judge S Maurice Hicks, Jr on 1/30/2023. (crt,Keifer, K)

Case 5:17-cv-01570-SMH-MLH Document 364 Filed 01/30/23 Page 1 of 2 PageID #: 9065

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TONY FERGUSON

CIVIL ACTION NO. 17-1570

VERSUS

JUDGE S. MAURICE HICKS, JR.

DEMOREO LENOIR and SWIFT
TRANSPORTATION CO. OF
ARIZONA, LLC

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the Court is a Motion for Certificate of Appealability (Rec. Doc. 342) filed by
Plaintiff Tony Ferguson. Defendants, Demoreo Lenoir and Swift Transportation Co. of
Arizona, LLC, opposed the motion (Rec. Doc. 355), and Plaintiff filed a reply (Rec. Doc.
361).
In the motion, Plaintiff argues that there are three key issues in the Court’s recent
Memorandum Ruling (Rec. Doc. 317) that justify immediate appeal: (1) “whether a plaintiff
can be prevented from presenting evidence of past medical treatment and evidence of
future medical treatment; and, an ethical consideration and matter of public policy
concerning the testimony of treating physicians related to the care of their patient”; (2)
“whether or not a plaintiff can maintain an independent negligence action against an
employer who admits course and scope, and sole fault of the employee, while maintaining
a denial of any independent fault”; and (3) “whether by admission of certain allegations in
a Plaintiff’s petition, a Defendant can categorically moot other allegations and topics of
discovery, with or without a final partial summary judgment on fault.” See Record
Document 342 at 1–2. In their opposition, Defendants respond that these issues do not
require immediate appeal under this Court’s precedent in Dooley v. MB Industries, LLC,

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Case 5:17-cv-01570-SMH-MLH Document 364 Filed 01/30/23 Page 2 of 2 PageID #: 9066

Civil Action No. 16-0362, 2018 WL 521795 (W.D. La. 1/22/2018), because the balance of
the applicable six factors weigh in favor of denying Plaintiff’s motion.
After a review of the briefs and based upon its knowledge of the record as a whole,
the Court DENIES the Motion for Certificate of Appealability. The Court finds that the
circumstances here do not warrant the extraordinary remedy of an immediate appeal, and
that allowing immediate appeal of these issues would result in the kind of piecemeal
litigation that is disfavored by the Fifth Circuit. See Clark-Dietz & Assocs.-Engineers, Inc.
v. Basic Const. Co., 702 F.2d 67, 69 (5th Cir. 1983) (noting “basic rule of appellate
jurisdiction” to avoid piecemeal appeals and the additional delay associated with them).
IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 30th day of January,
2023.

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