Wendrow et al v. Michigan Department of Human Services et al

Filing 337

ORDER granting 335 Motion to Certify Judgment. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THAL FLAM WENDROW, et al.,
Plaintiffs,
Case No. 08-14324
v.
Hon. John Corbett O’Meara
MICHIGAN DEPARTMENT OF
HUMAN SERVICES, et al.,
Defendants.
______________________________/

ORDER GRANTING PLAINTIFFS’ MOTION
TO CERTIFY JUDGMENT AS FINAL
Before the court is Plaintiffs’ motion to direct entry of final judgment as to certain claims
so that they may pursue an interlocutory appeal pursuant to Fed. R. Civ. P. 54(b). In orders
entered on March 20, 2011, and March 27, 2012, the court granted in part and denied in part
Defendants’ motions for summary judgment and reconsideration. The Walled Lake School
District Defendants and the Department of Human Services Defendants have taken an
interlocutory appeal as of right with respect to the court’s denial of qualified immunity on certain
claims. The court also dismissed some of Plaintiffs’ claims; others, not subject to qualified
immunity defenses, remain to be tried. In light of the complexity of this case, the court found
that judicial economy warranted the stay of the entire action pending the outcome of the appeal.
See Docket No. 331. This decision arose out of a concern that the court and the parties could be
in a position of trying a complex and lengthy case twice.
This same concern underlies the court’s determination that certain of Plaintiffs’ claims

are appropriately certified for appellate review at this time. Pursuant to Fed. R. Civ. P. 54(b),
“[w]hen an action presents more than one claim for relief . . . or when multiple parties are
involved, the court may direct the 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.” In
this case, the court dismissed all of Plaintiffs’ claims against Defendants Dean and Carley on
absolute and qualified immunity grounds, as well as Plaintiffs’ municipal liability claim under §
1983 against Oakland County. Plaintiffs seek Rule 54(b) certification so that they may
immediately appeal this determination.
When determining whether Rule 54(b) certification is appropriate, the court considers the
following non-exhaustive list of factors:
(1) the relationship between the adjudicated and unadjudicated
claims; (2) the possibility that the need for review might or might
not be mooted by future developments in the district court; (3) the
possibility that the reviewing court might be obliged to consider
the same issue a second time; (4) the presence or absence of a
claim or counterclaim which could result in set-off against the
judgment sought to be made final; (5) miscellaneous factors such
as delay, economic and solvency considerations, shortening the
time of trial; frivolity of competing claims, expense, and the like.
Corrosioneering, Inc. v. Thyssen Environ. Sys. Inc., 807 F.2d 1279, 1283 (6th Cir. 1986). In this
case, the Sixth Circuit will already be considering whether the court’s denial of qualified
immunity to certain defendants was appropriate; it would serve judicial economy for the
appellate court to consider whether the court properly granted immunity to Defendants Dean and
Carley at the same time. If certification is granted, the Sixth Circuit will review and consider
same factual record once. Further, obtaining review on all of the immunity issues at this time
will serve to clarify which defendants shall be subject to trial and avoid the potential of two

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lengthy, complex, and costly trials.
The need for the Sixth Circuit to review the court’s grant of immunity to Dean and
Carley will not be mooted by future developments in this court. However, as noted above, if
certification is not granted the Court of Appeals will need to consider Plaintiffs’ appeal of the
dismissal of their claims against Dean and Carley at a later date, reviewing the same factual
record a second time. Requiring Plaintiffs to wait until after the pending appeals are resolved,
then after trial is concluded, to appeal the dismissal of Dean and Carley will cause needless
delay. Indeed, courts have found that, where an appeal of the denial of qualified immunity is
already pending, an appeal of a decision granting qualified immunity as to other claims or
defendants is appropriately certified under Rule 54(b). See Marcilis v. Redford Twp., 2011 WL
284466 (E.D. Mich. Jan. 25, 2011); Mott v. Lucas, 2011 WL 3705131 (N.D. Ohio, Aug. 23,
2011); Abdulsalaam v. Franklin Bd. of Comm’rs, 2009 WL 2899886 (S.D. Ohio, Aug. 31,
2009). Under the circumstances of this case, the court finds no just reason to delay Plaintiffs’
appeal.
Plaintiffs’ municipal liability claim against Oakland County is intertwined with
Plaintiffs’ claims against Dean and Carley, as Plaintiff is seeking to impose municipal liability
based upon Dean and Carley’s conduct. Further, this claim is legally distinct from Plaintiffs’
remaining claims against Oakland County (a failure to accommodate Plaintiff AW’s disability
under the ADA and Persons with Disabilities Civil Rights Act). Accordingly, the court
determines that this claim should be certified as final under Rule 54(b) as well. If Plaintiffs’ §
1983 claim against Oakland County is not certified, the Sixth Circuit would be in a position to
review the factual and legal issues related to Dean and Carley’s conduct a second time, when

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Plaintiffs appeal the dismissal of the claim against Oakland County post-trial.
In their response brief, Defendants seek leave to appeal the court’s denial of David
Gorcyca’s motion for summary judgment on Plaintiffs’ defamation claim and the court’s denial
of Oakland County’s motion for summary judgment on Plaintiffs’ ADA and PWDCRA claims.
These claims fall into a different category, however. Rule 54(b) “does not empower the district
court to ‘treat as “final” that which is not “final” within the meaning of [28 U.S.C.] § 1291.”
Corrosioneering, 807 F.2d at 1282 (citation omitted). The court’s denial of a motion for
summary judgment, in contrast to a grant of summary judgment dismissing a claim, is not
generally a “final” order under § 1291. See, e.g., Harrison v. Ash, 539 F.3d 510, 516 (6th Cir.
2008) (noting denial of qualified immunity is immediately appealable, unlike most denials of
summary judgment). The court is without authority to grant certification so that Defendants may
appeal the denial of their motions for summary judgment.
ORDER
IT IS HEREBY ORDERED that Plaintiffs’ motion to certify the court’s dismissal of their
claims against Defendants Dean and Carley and their § 1983 claim against Oakland County is
GRANTED.
IT IS FURTHER ORDERED that a final judgment in favor of Defendants Dean and
Carley, and in favor of Oakland County on Plaintiffs’ § 1983 claim, shall be entered pursuant to
Fed. R. Civ. P. 54(b).
s/John Corbett O'Meara
United States District Judge

Date: February 6, 2013

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I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, February 6, 2013, using the ECF system.

s/William Barkholz
Case Manager

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