Merritt-Ruth et al v. Latta et al

Filing 65

OPINION AND ORDER granting 44 Motion to Amend/Correct to CERTIFY FOR IMMEDIATE APPEAL & FOR STAY OF PROCEEDINGS PENDING APPEAL.. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARION MERRITT-RUTH and
SIDNEY GURLEY, JR.,
Plaintiffs,
v.

Case No. 14-cv-12858

OFFICER LATTA, OFFICER
BLAIR, SAVITHIV KAKAN, and
BETH FRITZ,

Honorable Patrick J. Duggan

Defendants.

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
AMEND OPINION AND ORDER OF FEBRUARY 20, 2015 TO CERTIFY
FOR IMMEDIATE APPEAL AND FOR STAY OF PROCEEDINGS
PENDING APPEAL
This civil rights action, instituted by Marion Merritt-Ruth (“Plaintiff”) as
personal representative of the estate of Sidney Gurley, stems from Gurley’s death
while he was in the custody of the Michigan Department of Corrections
(“MDOC”) and an inmate at the Gus Harrison Correctional Facility in Adrian,
Michigan. This is the second civil action filed by Plaintiff, as she filed a lawsuit
containing substantially similar claims against various defendants in November of

2012 (the “2012 Action”).1 The 2012 Action terminated after the Court dismissed
the lawsuit without prejudice and the twenty-one-day period the Court gave
Plaintiff to file a second amended complaint lapsed. Instead of filing a second
amended complaint, Plaintiff instituted the present action (the “2014 Action”)
outside of the twenty-one-day period. Defendants then sought to dismiss the 2014
Action on several bases, one of which is relevant to the dispute presently before the
Court: namely, that the Court should dismiss the 2014 Action as barred by the
doctrine of res judicata. In an Opinion and Order dated February 20, 2015, this
Court concluded that res judicata did not bar Plaintiff from instituting a new civil
action.
On March 17, 2015, Defendant Savithri Kakani2 filed a motion to amend
this Court’s February 20, 2015 Opinion and Order to certify the action for
immediate appeal and for a stay of the proceedings in this Court pending appeal.
(ECF No. 44.) Defendants Susan Frey-Latta, Thomas C. Blair, and Beth Fritz (the
“MDOC Defendants”) filed a notice of concurrence with Defendant Kakani’s

1

The 2012 Action, case number 12-cv-15251, was assigned to the
undersigned.
2

The Amended Complaint incorrectly identifies Defendant Kakani as
“Savithiv Kakan.”
2

motion.3 (ECF No. 45.) The motion has since been fully briefed. Having
thoroughly considered the arguments set forth in the briefs, the Court determined
that oral argument would not significantly aid the decisional process, and
dispensed with oral argument pursuant to Eastern District of Michigan Local Rule
7.1(f)(2). For the reasons set forth herein, the Court grants Defendants’ motion,
stays further proceedings of this action in this Court pending resolution of the
appeal, and amends the Opinion and Order of February 20, 2015 to permit
Defendants to seek permission from the United States Court of Appeals for the
Sixth Circuit to file an immediate appeal. Fed. R. App. Pro. 5(a)(3).
I.
A.

BACKGROUND 4

The 2012 Action
On November 29, 2012, Plaintiff filed the original complaint in the 2012

Action. Plaintiff filed an amended complaint on April 25, 2013. In an Opinion
and Order dated April 1, 2014, the Court dismissed the amended complaint without
prejudice as to all defendants and gave Plaintiff, who was proceeding pro se,
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The Court notes that the MDOC Defendants’ notice of concurrence
indicates that they, along with Defendant Kakani, “seek reconsideration as well as
a stay of proceedings and certification for immediate appeal.” (MDOC Defs.’ Br.
2.) Defendant Kakani, however, did not request reconsideration of this Court’s
February 2015 Opinion and Order, and the MDOC Defendants mere reference to
reconsideration is an insufficient basis on which to request such relief.
4

Because the factual and procedural background is thoroughly laid out in
this Court’s February 20, 2015 Opinion and Order, the Court only discusses the
background pertinent to the instant motion.
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twenty-one days from receipt of the Opinion and Order to file a second amended
Complaint. The Court’s Order is reprinted verbatim immediately below.
IT IS ORDERED that the MDOC Defendants’ Motion to
Dismiss is GRANTED and that Plaintiff’s Amended Complaint is
DISMISSED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED that this Court MODIFIES
AND VACATES its July 24, 2013 Opinion and Order dismissing the
Non-MDOC Defendants (Defendants Prasad, Jindahl, and Kakan)
with prejudice and herein ORDERS that these defendants are
DISMISSED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED that Plaintiff has TWENTYONE (21) DAYS from receipt of this Opinion and Order to FILE A
SECOND AMENDED COMPLAINT curing the deficiencies
described herein.
B.

Institution of the Present Civil Action
In lieu of filing a second amended complaint in the 2012 Action, Plaintiff

instituted the 2014 Action on July 22, 2014, and filed an amended complaint on
October 13, 2014. Plaintiff is now proceeding with counsel.
C.

The Court’s February 20, 2015 Res Judicata Determination
In seeking dismissal of the 2014 Action, Defendants argued that the 2012

Action precluded the filing of a second lawsuit, relying on res judicata, a rule
providing that “[a] final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have been raised in that
action.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct.
2424, 2428 (1981) (citations omitted).
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Applying the four-part test utilized by courts within the Sixth Circuit, the
Court concluded that the dismissal of the 2012 Action without prejudice did not
amount to a final decision on the merits. As a result, res judicata did not preclude
the 2014 Action. Defendants contend that this conclusion was erroneous.
II.

GOVERNING LEGAL STANDARD

Defendants seek permission to file an appeal pursuant to Rule 5(a)(3) of the
Federal Rules of Appellate Procedure. Absent certification for an interlocutory
appeal under 28 U.S.C. § 1292(b) or Rule 54(b) of the Rules of Civil Procedure,
“[l]itigants are generally not entitled to appellate review of court orders prior to a
final judgment on the merits.” Hurt v. Commerce Energy, Inc., No. 1:12-CV00758, 2015 U.S. Dist. LEXIS 101091, at *6 (N.D. Ohio Aug. 3, 2015)
(unpublished) (citations omitted). This is because interlocutory appeals in the
federal system are generally disfavored. Tire & Rubber Co. v. Risjord, 449 U.S.
368, 101 S. Ct. 669 (1981). “Routine resort to § 1292(b) requests would hardly
comport with Congress’ design to reserve interlocutory review for ‘exceptional’
cases while generally retaining for the federal courts a firm final judgment rule.”
Caterpillar v. Lewis, 519 U.S. 61, 74, 117 S. Ct. 467, 475 (1996). Accordingly,
the party seeking interlocutory certification bears the burden of showing that
exceptional circumstances exist such that an interlocutory appeal is warranted. W.
Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of Memphis (In re
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City of Memphis), 293 F.3d 345, 350 (6th Cir. 2002); cf. In re Miedzianowski, 735
F.3d 383, 384 (6th Cir. 2013) (explaining that § 1292(b) certification “should be
sparingly applied” and “is to be used only in exceptional circumstances”).
The pertinent statute governing interlocutory certification and appeals
provides:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that
such order involves [(1)] a controlling question of law [(2)] as to
which there is substantial ground for difference of opinion and [(3)]
that an immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in
such order. The Court of Appeals which would have jurisdiction of an
appeal of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to it within
ten days after the entry of the order: Provided, however, That
application for an appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court of Appeals or a
judge thereof shall so order.
28 U.S.C. § 1292(b).
III.
A.

ANALYSIS

Controlling Legal Issue
“A legal issue is controlling if it could materially affect the outcome of the

case.” In re City of Memphis, 293 F.3d at 351. “A question may be controlling ‘if
its incorrect disposition would require reversal of a final judgment, either for
further proceedings or for a dismissal that might have been ordered without the
ensuing district-court proceedings.’” Hurt, No. 1:12-CV-00758, 2015 U.S. Dist.
6

LEXIS 101091, at *7 (quoting 16 Wright & Miller, Federal Practice & Procedure
Juris. § 3930 (3d ed. 2015)).
It is beyond dispute that “[t]he application of res judicata is a question of
law” that the Sixth Circuit reviews de novo. Bates v. Twp. of Van Buren, 459 F.3d
731, 734 (6th Cir. 2006) (citing Browning v. Levy, 283 F.3d 761, 772 (6th Cir.
2002)). The Court concludes that the legal question presented – whether this Court
correctly resolved the res judicata issue raised by Defendants – is controlling.
This is because if the Sixth Circuit were to ultimately disagree with this Court’s
resolution of the res judicata question, Plaintiff’s claims would be subject to
dismissal and the case would be closed. In other words, a reversal on appeal on the
res judicata issue would result in a dismissal that might have been ordered without
any further proceedings in this Court.
Thus, this first consideration weighs in favor of granting Defendants’ request
for leave to file an interlocutory appeal.
B.

Substantial Grounds for Different Opinion
The second factor district courts are to consider in whether to certify an

interlocutory appeal is whether substantial grounds exist for a different opinion on
the issue. Substantial grounds for a difference of opinion exist when “(1) the
question is difficult, novel and either a question on which there is little precedent
or one whose correct resolution is not substantially guided by previous decisions;
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(2) the question is difficult and of first impression; (3) a difference of opinion
exists within the controlling circuit; or (4) the circuits are split on the question.” In
re Miedzianowski, 735 F.3d at 384 (citation omitted).
Here, Defendants assert that this condition is “indisputably met” for two
independent reasons. (Def. Kakani’s Br. 18.) First, Defendants contend that there
is a difference of opinion in the controlling circuit, as this Court reached a different
outcome than the unpublished Sixth Circuit opinion in Ohio Carpenters Central
Collection & Administrative Agency v. B. P. Jenkins, Inc., Nos. 90-3208, 90-3236,
1991 U.S. App. LEXIS 4234 (6th Cir. Mar. 11, 1991) (unpublished) (per curiam).
In the alternative, Defendants contend that because there is no binding authority
specifically answering this question of law, “this is a difficult issue of first
impression – the difficulty being demonstrated by the two divergent opinions on
the issue.” (Def. Kakani’s Br. 19.) Because the Court agrees that there is a
difference of opinion in the controlling circuit that makes the controlling legal
issue one on which there are substantial grounds for a different opinion, the Court
only addresses Defendants’ first contention.
Defendants argue that there is a difference of opinion warranting
certification of an interlocutory appeal, relying on the unpublished Sixth Circuit
case of Ohio Carpenters. In Ohio Carpenters, the parties settled the underlying
action, and the district court entered an order of dismissal “without costs and
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without prejudice to the right, upon good cause shown within sixty (60) days, to
reopen the action if settlement is not consummated.” Id. at *1-2. Fifteen months
after the entry of the district court’s order, the plaintiffs filed a motion to reopen
the case, which the district court denied. Id. at *2. The Sixth Circuit rejected the
plaintiffs’ argument that the district court’s “without prejudice” language did not
constitute an adjudication on the merits for purposes of res judicata. The Court
explained:
We agree with the district court that the language of the order of
dismissal is properly interpreted to mean that the case was dismissed
without prejudice for the first 60 days only, and after expiration of the
60 days was converted to a dismissal with prejudice. Thus, the order
of dismissal operated as an adjudication on the merits after 60 days
because no further action was taken by the plaintiffs within that time
period. Because plaintiffs were precluded from reopening the case
after 60 days, they were precluded from refiling a second suit against
the defendant for claims arising before the expiration of the 60-day
period following the order of dismissal.
Id. at *3.
In its February 20, 2015 Opinion and Order rejecting Defendants’ res
judicata argument, the Court acknowledged Ohio Carpenters, but declined to
follow it on the basis that it was unpublished, and therefore, not binding. The
Court explained that the dismissal of the 2012 Action was “without prejudice” and
“was not explicitly conditioned upon the filing of a second amended complaint, as
the Court did not indicate that the dismissal without prejudice would be converted
into one with prejudice should Plaintiff choose not to file an amended pleading
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within the twenty-one day period.” Unlike the language in Ohio Carpenters that
was expressly conditional, the language in the Court’s dismissal of the 2012 Action
was not. Further, it is this Court’s belief that penalizing Plaintiff, who was
proceeding pro se at the time, for its own lack of clarity in the order of dismissal
would be neither just nor fair. This is particularly true in light of the fact that the
Court never expressly indicated that the dismissal without prejudice would be
converted into one with prejudice if a second amended complaint was not filed in
accordance with the Court’s order.
In spite of this belief, however, the Court acknowledges that the logic
deployed in Ohio Carpenters could apply with equal force here. That is, if
Plaintiff could not file a second amended complaint in the 2012 Action after the
twenty-one-day period set forth in the dismissal order, then it was arguably
improper to permit Plaintiff to institute a new civil action after that three-week
period lapsed.
For these reasons, the Court concludes that the “substantial grounds for
different opinion” requirement set forth in 28 U.S.C. § 1292(b) has been satisfied.
C.

Material Advancement of Ultimate Termination of the Litigation
Finally, the Court must consider whether an immediate appeal would

materially advance the ultimate termination of the litigation. “Such circumstances
exist where appellate review could ‘appreciably shorten the time, effort, and
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expense exhausted between the filing of a lawsuit and its termination.’” Hurt, No.
1:12-CV-00758, 2015 U.S. Dist. LEXIS 101091, at *11 (quoting Berry v. Sch.
Dist. of City of Benton Harbor, 467 F. Supp. 721, 727 (W.D. Mich. 1978)).
In this case, if judgment is ultimately entered against Defendants,
Defendants will almost certainly appeal the Court’s res judicata decision, as they
have intimated as much in their moving papers. While an interlocutory appeal and
concomitant stay of proceedings during the pendency of that appeal will serve to
delay the proceedings in this Court, an interlocutory appeal could very well shorten
the resolution of this litigation. That is, if the appellate court disagrees with this
Court’s resolution of the res judicata issue, the case will be dismissed. Indeed,
permitting such an appeal may save the parties effort, time, and expense.
As such, the Court concludes that this factor weighs in favor of granting the
present motion.
D.

Stay of Proceedings
Because the Court has determined that the factors for an interlocutory appeal

have been met, it must now evaluate whether to stay proceedings during the
pendency of that appeal, as 28 U.S.C. § 1292(b) expressly provides that an
“application for an appeal [] shall not stay proceedings in the district court unless
the district judge or the Court of Appeals or a judge thereof shall so order.”

11

Federal Rule of Appellate Procedure 8(a) provides that a party seeking to
stay a judgment or order of a district court pending appeal must ordinarily move
first in the district court. Fed. R. App. P. 8(a)(1)(A). The Sixth Circuit reviews
four factors when evaluating a stay pending appeal under this rule:
(1) the likelihood that the party seeking the stay will prevail on the
merits of the appeal; (2) the likelihood that the moving party will be
irreparably harmed absent a stay; (3) the prospect that others will be
harmed if the court grants the stay; and (4) the public interest in
granting the stay.
SEIU Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per curiam) (quoting
Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153
(6th Cir. 1991)). “These factors are not prerequisites that must be met, but are
interrelated considerations that must be balanced together.” Griepentrog, 945 F.2d
at 153. The moving party has the burden of demonstrating entitlement to a stay.
SEIU Local 1, 698 F.3d at 343 (citing Overstreet v. Lexington-Fayette Urban Cnty.
Gov’t, 305 F.3d 566, 573 (6th Cir. 2002)).
With respect to the first factor – the likelihood that Defendants will prevail
on the merits of their appeal – the Court has acknowledged that the outcome of its
February 20, 2015 Opinion and Order differed with the outcome reached in a Sixth
Circuit case implicating similar, although certainly not identical, circumstances.
Although the Court is not persuaded that its outcome was incorrect, because the
question is debatable amongst jurists of reason, the Court believes that this factor
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weighs in favor of staying proceedings pending the Sixth Circuit’s decision on
appeal, should the Sixth Circuit grant permission for the parties to proceed with an
interlocutory appeal.5
Turning now to the likelihood that Defendants will be irreparably harmed
absent a stay, the Court concludes that this factor also weighs in favor of granting a
stay. As Defendant Kakani’s brief indicates, “[t]o proceed with discovery and
obtain a resolution on the merits, only to face appeal in the event that one or more
Defendants are found liable, would be a tremendous waste of time, money, and
resources for all parties[.]” (Def. Kakani’s Br. 20.)
The remaining considerations – whether others will be harmed if the Court
grants the requested stay and the public interest in granting the stay – are both
neutral, and do not weigh heavily in this Court’s analysis. If the Sixth Circuit
concludes that an immediate appeal is not warranted, or that this Court decided the
res judicata issue correctly, Plaintiff will be permitted to proceed with her case.
While a stay will inevitably delay the proceedings here, and potentially the
ultimate resolution of this action, this is not enough to deny Defendants’ request
for a stay.
IV.

CONCLUSION AND ORDER

5

Title 28 U.S.C. § 1292(b) provides for interlocutory appeals from
otherwise not immediately appealable orders, provided that the conditions set forth
in the provision are satisfied, the district court so certifies, and the court of appeals
exercises its discretion to take up the request for review.
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For the reasons set forth herein, the Court concludes that the issue
Defendants seek to appeal is appropriate for interlocutory review.
Accordingly, Defendants’ motion to amend Opinion and Order of February
20, 2015 to certify for immediate appeal and for stay of proceedings pending
appeal (ECF No. 44) is GRANTED. An amended order amending the February
20, 2015 Opinion and Order shall issue forthwith.
Dated: August 11, 2015
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Thomas E. Kuhn
David A. Robinson
Cori E. Barkman, AAG
Lisa M. Geminick, AAG
Carly A. Van Thomme
Ronald W. Chapman
Kimberley A. Koester

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