State of North Carolina v. Alcoa Power Generating, Inc.

Filing 182

ORDER DENYING 178 Plaintiff's Motion for Certificate of Appealability: The State's motion to amend the May 6, 2015, order is denied. Signed by US District Judge Terrence W. Boyle on 5/18/2015. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-633-BO

STATE OF NORTH CAROLINA, by and
through its agency, the NORTH
CAROLINA DEPARTMENT OF
ADMINISTRATION,
Plaintiff,
v.

ALCOA POWER GENERATING, INC.,
Defendant.

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ORDER

This matter comes before the Court on the State's motion to amend the Court's May 6,
2015 order. [DE 178]. Defendant Alcoa has responded in opposition to the State's motion. [DE
179]. For the following reasons, the State's motion is denied.
DISCUSSION
On May 6, 2015, the Court issued an order making findings of fact and conclusions of
law as to the navigability ofthe Relevant Segment ofthe Yadkin River (the Navigability Order).
[DE 173]. The State requests that the Court either denominate the Navigability Order as a final
order pursuant to Rule 54(b) ofthe Federal Rules of Civil Procedure or 28 U.S.C. § 1291, or add
certification statements that would allow the State to pursue a permissive interlocutory appeal
pursuant to 28 U.S.C. § 1292(b).
Rule 54(b) allows for entry of a partial final judgment as to one or more, but fewer than
all of the "claims for relief' in a case where there are multiple claims or parties. Fed. R. Civ. P.
54(b); Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737,742-43 (1976) (finding that Rule 54(b) is
"limited expressly to multiple claims actions in which one or more but less than all of the
multiple claims have been finally decided and are found otherwise to be ready for appeal")

(internal quotation marks omitted). To be afforded reliefunder Rule 54(b), plaintiff must
establish first that the order appealed from disposes of a single claim, and second, that there is no
just reason for delay. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 11-12 (1980). Rule
54(b) determinations allowing immediate appeal are the exception rather than the rule. CurtissWright, 446 U.S. at 10; Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th Cir.
1993). Multiple claims exist under 54(b) where each claim is factually separate and independent.
Curtiss-Wright, 446 U.S. at 6. Other circuits have held that Rule 54(b) applies only to an appeal
of an individual claim, not issues or legal theories within a single claim. See, e.g., Weigel v.
Broad, 544 F.3d 1143, 1151 n.3 (lOth Cir. 2008); RePass v. Vreeland, 357 F.2d 801, 805 (3d
Cir. 1966); CMAX, Inc. v. Drewry Photocolor Corp, 295 F.2d 695,697 (9th Cir. 1961). Here, the
State's entire case arises out ofthe same set of facts, it has brought one claim, and it seeks one
result. Navigability is simply a legal issue affecting determination of title. As such, the case
involves only a single claim, and the Navigability Order is not an appealable final decision
within the meaning of Rule 54(b) ofthe Federal Rules of Civil Procedure.
Moreover, under 28 U.S.C. § 1291, which allows for appeal of a final judgment, a
'"final' judgment is one that 'ends litigation on the merits and leaves nothing for the Court to do
but execute judgment."' United States v. Breeden, 366 F.3d 369,371 (4th Cir. 2004) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). There is a narrow class of collateral
orders that "do not terminate the litigation, but must, in the interest of achieving a healthy legal
system, nonetheless be treated as final." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
863, 867 (1994) (internal citation and quotation omitted). In order to be subject to immediate
appeal, a ruling "must conclusively determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be effectively unreviewable on appeal

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from a final judgment." Coopers & Lybrand, 437 U.S. at 468. "[A]ppeal is precluded from any
decision which is tentative, informal, or incomplete, as well as from any fully consummated
decisions which are but steps toward a final judgment into which they will merge ... ."Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (internal

citation and quotation omitted). The Navigability Order is a step toward a final judgment and is
reviewable on appeal. Appeal under § 1291, therefore, is inappropriate.
The Court also does not find that the Navigability Order "involves a controlling question
of law as to which there is substantial ground for difference of opinion" such that it is
immediately appealable pursuant to§ 1292(b). The Supreme Court directly addressed the
question of whether federal law controls questions of navigability for title in P P L Montana v.
Montana, 132 S. Ct. 1215, 1227 (2012), and whether this Court correctly applied federal

navigability law to this case is not a controlling question oflaw. Moreover, the Court concluded
that questions of navigability for determining state riverbed title are governed by federal law in
its order denying remand on November 27, 2013, rather than in the Navigability Order. [DE 34].
As such, an interlocutory appeal under § 1292(b) is unwarranted.
CONCLUSION
For the foregoing reasons, the State's motion to amend the May 6, 2015, order is denied.

SO ORDERED, this __i__Kday ofMay, 2015.

TE
NCE W. BOYLE
UNITED STATES DISTRICT

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