Kuhr et al v. Millard Public School District et al

Filing 105

MEMORANDUM AND ORDER - The Motion to Amend Order Denying Defendants' Motion for Summary Judgment (Filing No. 82 ) filed by Defendants Millard Public School District (MPSD) and Dr. Keith Lutz is denied. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CASSIE KUHR and NICK KUHR, by
and through their Mother and Next
Friend, JEANNE KUHR, and DAN
KUHR,
Plaintiffs,
vs.
MILLARD PUBLIC SCHOOL
DISTRICT, and DR. KEITH LUTZ, in
his capacity as Superintendent of
Millard Public Schools,
Defendants.

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CASE NO. 8:09CV363

MEMORANDUM
AND ORDER

This matter is before the Court on the Motion to Amend Order Denying Defendants’
Motion for Summary Judgment (Filing No. 82) filed by Defendants Millard Public School
District (MPSD) and Dr. Keith Lutz. The Court has considered the parties’ briefs (Filing
Nos. 82 and 89), and for the reasons discussed below, Defendants’ Motion will be denied.
On November 8, 2011, this Court issued an Order (Filing No. 81) denying
Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Filing
No. 56). In that Order the Court found that Plaintiffs’ requests for injunctive and declaratory
relief were moot, but that a claim for nominal damages was encompassed in Plaintiffs’
claim for relief. (Filing No. 81, at 12–13.) The Order then stated in relevant part:
Plaintiffs' First Amendment claim is redressable if Plaintiffs seek nominal
damages and attorneys fees, and this will prevent dismissal for mootness.
Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 802 (8th Cir.
2006). Some have questioned whether a claim for nominal damages truly
presents a justiciable “case or controversy.” See, e.g., Utah Animal Rights
Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1262–71(10th Cir. 2004)
(McConnell, J., concurring). However, the majority of circuits agree that a
claim for nominal damages will prevent mootness. See, e.g., Id., at 1272 n.2
(Henry, J., concurring) (collecting cases).
(Id.)

Defendants dispute that a claim for nominal damages can prevent mootness and
now ask the Court to amend its prior Order to allow them to appeal this issue under 28
U.S.C. § 1292(b).
DISCUSSION
28 U.S.C. § 1292(b) allows a district court to certify an interlocutory appeal of an
order where the court determines that “‘(1) the order involves a controlling question of law;
(2) there is substantial ground for difference of opinion; and (3) certification will materially
advance the ultimate termination of the litigation.’” Union Cnty., Iowa v. Piper Jaffray &
Co., 525 F.3d 643, 646 (8th Cir. 2008) (quoting White v. Nix, 43 F.3d 374, 377 (8th
Cir.1994)). Permission to allow such appeals should only be granted “‘sparingly and with
discrimination.’” Id. at 646 (quoting White, 43 F.3d at 376). The legislative history of §
1292(b) “‘indicates that it was to be used only in extraordinary cases where decision of an
interlocutory appeal might avoid protracted and expensive litigation.’” Id. (quoting U.S.
Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir.1966)).
1.

Controlling Question of Law

The portion of this Court’s Order that Defendants seek to appeal clearly involves a
“controlling question of law.” Plaintiffs’ claim for nominal damages is their sole remaining
basis for invoking federal jurisdiction. If the Eighth Circuit were to hold that nominal
damages will not prevent dismissal for mootness, Plaintiffs’ entire case would be
dismissed.

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2.

Substantial Ground for Difference of Opinion

There is not a “substantial ground for difference of opinion” on the issue before the
Court. “‘Identification of “a sufficient number of conflicting and contradictory opinions”
would provide substantial ground for disagreement.’” Union Cnty., 43 F.3d at 647 (quoting
White, 43 F.3d at 378 (quoting Oyster v. Johns-Manville Corp., 568 F. Supp. 83, 88 (E.D.
Pa. 1983))). “To determine if a ‘substantial ground for difference of opinion’ exists under
§ 1292(b), courts must examine to what extent the controlling law is unclear.” Couch v.
Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). The law may be unclear where “‘the
circuits are in dispute on the question and the court of appeals of the circuit has not spoken
on the point.’” Id. (quoting 2 FEDERAL PROCEDURE, LAW YERS EDITION § 3:212 (2011)).
The Eighth Circuit has spoken on the issue at hand. In Advantage Media, L.L.C.
v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006), the court held that a possible right to
nominal damages was sufficient to show redressability and thus confer standing. Id. at
802. Defendants argue that the concurring opinion of Judge McConnell in Utah Animal
Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1262–71 (10th Cir. 2004) (McConnell,
J., concurring), establishes substantial grounds for difference of opinion. However, while
Judge McConnell made many compelling arguments, he acknowledged that Tenth Circuit
precedent holds that “a claim for nominal damages precludes dismissal of the case on
mootness grounds.” Id. at 1262–63 (citing Comm. for the First Amendment v. Campbell,
962 F.2d 1517, 1526 (10th Cir.1992); O’Connor v. City & Cnty. of Denver, 894 F.2d 1210,
1215–16 (10th Cir.1990)).

The Eighth Circuit has spoken, and Judge McConnell’s

concurrence, while “mak[ing] an important contribution that might call forth some academic

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discussion about these issues” does not establish a substantial ground for difference of
opinion within the meaning of § 1292(b). Id. at 1271 (Henry, J., concurring).
3.

Material Advancement of the Litigation

The Court reads the third factor in conjunction with the Eighth Circuit’s admonition
that interlocutory appeals should only be allowed in “‘extraordinary cases’” to avoid
“‘protracted’” litigation. Union Cnty., 43 F.3d at 646 (quoting U.S. Rubber Co., 359 F.2d
at 785). Although resolution of this issue in Defendants’ favor would avoid the need for a
trial, there is no reason to believe that litigation in this case will be protracted, nor have
Defendants presented the Court with any reason to believe this is an “extraordinary” case.
Accordingly,
IT IS ORDERED:
1.

The Motion to Amend Order Denying Defendants’ Motion for Summary
Judgment (Filing No. 82) filed by Defendants Millard Public School District
(MPSD) and Dr. Keith Lutz is denied.

DATED this 3rd day of January, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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