Parker v. Leaf River Cellulose, LLC
ORDER denying 82 Motion for Certification Signed by District Judge Keith Starrett on 6/26/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JOSEPH EDWARD PARKER
CIVIL ACTION NO. 2:14-CV-9-KS-MTP
LEAF RIVER CELLULOSE, LLC
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Certification  filed by Defendant Leaf
River Cellulose, LLC. After considering the submissions of the parties, the record, and the
applicable law, the Court finds that this motion is not well taken and should be denied.
Plaintiff Joseph Edward Parker (“Plaintiff”) filed this suit on January 23, 2014, against
Defendant Leaf River Cellulose, LLC (“Defendant”), claiming that he was wrongfully discharged
in violation of Mississippi law. Plaintiff is a resident of Mississippi, and Defendant is a Delaware
limited liability company. This Court has diversity jurisdiction over this action pursuant to 28
U.S.C. § 1332.
Plaintiff began working for Defendant at its plant in New Augusta, Mississippi, in October
2008. While employed at the plant, Plaintiff and other employees utilized a parking area which
has no gate, fence, or security station, and which “is surrounded on all sides by roadways and open
fields.” At the entrances of this lot, signs are posted which state, “THIS PARKING AREA IS
FOR THE EXCLUSIVE USE OF GP1 EMPLOYEES AND THOSE CONDUCTING BUSINESS
WITH GP. WEAPONS OF ANY KIND ARE PROHIBITED, TO INCLUDE THE CARRYING
“GP” refers to Georgia Pacific LLC, Defendant’s parent company.
OF A PISTOL OR REVOLVER.” There is also a security station at the plant itself, located across
a public road from the parking lot and, by Defendant’s estimation, approximately 145 feet away.2
On December 12, 2013, Defendant received a report that Plaintiff had a firearm in his
locked personal vehicle, and Plaintiff granted permission for his vehicle to be searched. After
finding the firearm in the vehicle, Defendant suspended Plaintiff for violating its firearm policy
and was ordered to leave the premises. (See id. at ¶ 4.) On December 13, 2013, Plaintiff was
terminated from his employment.
Plaintiff filed suit on January 23, 2014, and this Court dismissed under Federal Rule of
Civil Procedure 12(b)(6) on December 19, 2014, on the basis that Defendant was immune from
suit under § 45-9-55 and under Mississippi’s at-will employment doctrine. (See Order .) The
Fifth Circuit originally affirmed the dismissal, but reversed it on September 1, 2016, following the
answer by the Mississippi Supreme Court of a certified question in a case involving the same issue.
(See USCA Opinion .) The case was then remanded back to this Court for further proceedings.
On May 18, 2017, the Court issued an Order  granting Plaintiff’s Motion for Partial
Summary Judgment  and denying Defendant’s Motion for Summary Judgment . In that
Order , the Court held that access to Defendant’s parking lot was not restricted as required by
§ 45-9-55(2) by either the signs posted at the lot’s entrances or the security station located at the
plant, and that it was therefore unlawful for Plaintiff to be terminated for having a firearm in his
locked vehicle. In its Order , the Court interpreted the language of § 45-9-55(2), which allows
employers to prohibit employees from storing firearms in their vehicles if the parking lot “is
restricted or limited through the use of a gate, security station or other means of restricting or
limiting general public access,” to require the lot be “restricted or limited by a gate, security station,
Plaintiff estimates that it is 170 feet.
or other similar barrier at or near the point of access.” (Order  at p. 5.) The Court left the
question of damages for trial. It is this Order  which Defendant seeks to have certified for an
interlocutory appeal in his Motion for Certification .
Standard of Review
The Fifth Circuit has held that “[i]nterlocutory appeals are not favored” and that courts
should “strictly construe statutes permitting them.” Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d
288, 292 (5th Cir. 2007) (citing Complaint of Ingram Towing Co., 59 F.3d 415, 515 (5th Cir.
1995)). “Interlocutory appeals should . . . be limited to those that are expressly allowed . . . in
order to conform to the jurisdictional pattern prescribed by Congress, which is intended to permit
appeal from orders of serious, perhaps irreparable consequence.” Commodity Futures Trading
Comm’n v. Preferred Capital Inv. Co., 664 F.2d 1316, 1319-20 (5th Cir. 1982). The decision to
certify an order for interlocutory appeal is within the discretion of the Court. See Swint v.
Chambers Cnty. Comm’n, 514 U.S. 35, 47, 115 S. Ct. 1203, 131 L.Ed.2d 60 (1995) (“Congress
thus chose to confer on district courts first line discretion to allow interlocutory appeals.”).
Under 28 U.S.C. § 1292(b), the Court may only certify an order for interlocutory appeal if
such order (1) “involves a controlling question of law,” (2) “there is substantial ground for
difference of opinion” as to that question of law, and (3) “an immediate appeal from the order may
materially advance the ultimate termination of litigation.” 28 U.S.C. § 1292(b). All three criteria
must be met before an order is certified for interlocutory appeal. Aparicio v. Swan Lake, 643 F.2d
1109, 1110 n.2 (5th Cir. Unit A Apr. 1981). There is little doubt that the first criterion is met, as
parties agree that the interpretation of § 45-9-55(2) is a controlling question of law in this case.
The Court therefore only analyzes whether there is a substantial ground for difference of opinion
on this question and whether an immediate appeal may materially advance this litigation.
Substantial Ground for Difference of Opinion
Defendant’s argument for why there is a substantial ground for difference of opinion as to
the interpretation of § 45-9-55(2) is based in the fact that the interpretation of the statute is a matter
of first impression. However, “simply because a court is the first 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, 724 (N.D. Tex. 2006) (citing 4 Am.Jur.2d Appellate Review § 128
(2005)). It is only when questions of first impression are “novel and difficult” that courts typically
find a substantial ground for difference of opinion. Id. at 723-24.
Here, the interpretation of § 45-9-55(2) is not a difficult question of law. The only
reasonable reading of the language of the statute is the one adopted by this Court. This reading
further comported with the legislative history behind the statute. Furthermore, the differing
interpretation offered by Defendant in its Motion for Summary Judgment  was unpersuasive
and misapplied the methods of interpretation on which it relied. The Court therefore cannot find
that there is a substantial ground for difference of opinion as to the interpretation of § 45-9-55(2).
Materially Advance the Ultimate Termination of Litigation
“The use of § 1292(b) is reserved for those cases where an intermediate appeal may avoid
protracted litigation.” Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865-66 (2d Cir. 1996)
(citing Milbert v. Bison Labs., 260 F.2d 431, 433-35 (3d Cir. 1958)). “The institutional efficiency
of the federal court system is among the chief concerns motivating § 1292(b).” Ryan, 444
F.Supp.2d at 723 (quoting Strougo v. Scudder, Stevens & Clark, Inc., No. 96 Civ. 2136 (RWS),
1997 WL 473566, at *6 (S.D.N.Y. Aug. 18, 1997)). “A . . . key concern consistently underlying
§ 1292(b) decisions is whether permitting an interlocutory appeal will ‘speed up the litigation.’”
Id. (quoting Ahrenholz v. Bd. of Trustees of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000)).
In the current case, the Court does not find that an interlocutory appeal will contribute to
the efficiency of the court system or “speed up the litigation.” Trial in this matter is set for trial
on September 4, 2017, which is less than three months away. After the conclusion of this trial and
the entry of final judgment, Defendant will be able to take its appeal to the Fifth Circuit. However,
if the Court allowed an interlocutory appeal, the trial would be substantially delayed until the Fifth
Circuit ruled on such appeal. If the Court’s Order  was affirmed by this appeal, the case would
be remanded for trial, after which Defendant would be allowed to appeal once again. The Court
finds that it would be more efficient to move forward with the imminent trial on damages and
allow all issues to be appealed at once.3
Because the Court does not find that there is a substantial ground for difference of opinion
on the interpretation of § 45-9-55(2) and because an interlocutory appeal would not serve the
efficiency of the litigation, the Court will deny Defendant’s Motion for Certification .
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion for
Certification  is denied.
SO ORDERED AND ADJUDGED on this the __26th___ day of June, 2017.
UNITED STATES DISTRICT JUDGE
Defendant in it’s Reply  states that settlement is highly unlikely because of the far-reaching implications of the
Court’s interpretation of § 45-9-55(2) and the need for the Fifth Circuit to address this issue. The Court, however,
sees no reason why the parties could not, if they wished, craft a settlement agreement that allowed for an appeal of the
Court’s Order .
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