MB Realty Group, Inc. et al v. Gaston County Board of Education et al

Filing 135

ORDER denying 130 Motion for Entry of Judgment under Rule 54(b). Signed by Chief Judge Frank D. Whitney on 4/25/19. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00427-FDW-DCK
MB REALTY GROUP, INC., and MATT )
BECKHAM,
)
)
Plaintiffs,
)
)
vs.
)
)
THE GASTON COUNTY BOARD OF )
EDUCATION,
GASTON
COUNTY, )
CARSTAPHEN FAMILY FOUNDATION, )
THE STOWE FOUNDATION, INC., )
CATHERINE ROBERTS, and TRACY )
PHILBECK,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court on Plaintiffs MB Realty Group, Inc. and Matt
Beckham’s Motion for Entry of Judgment or, in the alternative, to Certify Order for Interlocutory
Appeal and to Stay Proceedings Pending Appeal (Doc. No. 130). For the reasons stated below,
Plaintiffs’ Motion is DENIED.
PROCEDURAL BACKGROUND
The Court held a hearing on April 10, 2019 on Defendants Gaston County Board of
Education, Gaston County, Carstarphen Family Foundation, The Stowe Foundation, Inc.,
Catherine Roberts, and Tracy Philbeck’s motions for summary judgment. After reviewing the
briefs, record, and hearing arguments from counsel, the Court issued an Oral Order granting
summary judgment for Defendants Gaston County Board of Education, Gaston County, Catherine
Roberts, and Tracy Philbeck. The case is scheduled to proceed to trial for the May 6 trial term.
Plaintiffs and Defendants Carstarphen Family Foundation and The Stowe Foundation filed a
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Consent Motion to Stay Proceedings (Doc. No. 129), which this Court denied (Doc. No. 134).
Plaintiffs now move pursuant to Fed. R. Civ. P. 54(b) and 28 U.S.C. § 1292(b) for the Court to
enter final judgment or, in the alternative, certify its Order for immediate appeal.
ANALYSIS
The Fourth Circuit Court of Appeals may exercise jurisdiction only over final orders and
certain interlocutory and collateral orders. Smith v. Miro, 23 F. App’x 124. 125 (4th Cir. 2001)
(citing 28 U.S.C. §§ 1291, 1292 and Fed. R. Civ. P. 54(b)). Thus, Plaintiff moves the Court to
certify the April 10, 2019 Oral Order granting summary judgment immunity to Gaston County and
Gaston County Board of Education as an interlocutory order pursuant to § 1292(b) or as final order
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
A. Certification under § 1292(b)
Pursuant to 28 U.S.C. § 1292(b), a district court may certify an order for interlocutory
appeal if the district court determines that “such order involves a controlling question of law as to
which there is substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation . . . .” 28 U.S.C. § 1292(b).
However, the Fourth Circuit has cautioned that § 1292(b) should be used only “sparingly” and that
“its requirements must be strictly construed.” Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989);
see also City of Charleston v. Hotels.Com, LP, 586 F. Supp. 2d 538, 542 (D.S.C. 2008) (clarifying
that “certification of an interlocutory appeal should generally be limited to extraordinary cases
where significant effort and expense would be spared by appellate review prior to the entry of final
judgment”). The movant bears the burden of demonstrating that the extraordinary relief of
certification under § 1292(b) is warranted. See State of N.C. ex rel. Howes v. W.R. Peele, Sr.
Trust, 889 F. Supp. 849, 853 (E.D.N.C. 1995).

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Here, Plaintiffs have failed to show that the Court’s Order creates a substantial difference
of opinion. “An issue presents a substantial ground for a difference of opinion if courts, as opposed
to parties, disagree on a controlling legal issue.” Lynn v. Monarch Recovery Mgmt. Inc., 953 F.
Supp. 2d 612, 624 (D. Md. 2013) (emphasis in original). Here, Plaintiffs have offered no argument
of substantial difference of opinion. Thus, the Court finds that Plaintiff has failed to show that
there is a substantial difference in opinion which would warrant certification of the Court’s Order
granting Gaston County and the Gaston County Board of Education summary judgment.
Furthermore, Plaintiffs have failed to show that an appeal of the Court’s Oral Order would
materially advance the disposition of this litigation. Rather, Plaintiffs merely argue that without
an immediate appeal, Plaintiffs could face the risk of inconsistent verdicts. For these reasons, the
Court finds that Plaintiffs have failed to demonstrate that certification of the Court’s Oral Order is
warranted under 28 U.S.C. § 1292(b).
B. Certification under Fed. R. Civ. P. 54(b)
Under Rule 54(b) of the Federal Rules of Civil Procedure,
When an action presents more than one claim for relief—whether as a claim,
counterclaim, crossclaim, or third-party claim—or when multiple parties are
involved, the court may direct 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.
Fed. R. Civ. P. 54(b) (emphasis added). Certification of an order under Rule 54(b) requires two
steps. First, the court must determine whether the judgment is “final,” that is, whether the order
constitutes “an ultimate disposition of an individual claim entered in the course of a multiple claims
action.” Braswell Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1335 (4th Cir. 1993) (citation
and internal quotation marks omitted). Second, the court must determine whether there is “no just
reason for the delay” in the entry of judgment. See id. The movant bears burden of establishing

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that Rule 54(b) certification is warranted. Id. at 1335. However, it is ultimately within the court’s
discretion “to determine the appropriate time when each final decision in a multiple claims action
is ready for appeal.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980) (citation and
internal quotation mark omitted). The court’s discretion should be exercised “in the interest of
sound judicial administration.” Id. (citation omitted). Here, the Court finds that the resolution of
the issue that Plaintiffs seek to appeal does not advance the termination of the litigation against
those who remain in the action still pending. 1 However, the Court would be constrained to delay
the present action while Plaintiffs litigate the immunity issue on appeal. As such, the Court finds
that judicial economy would not be served under the circumstances of this case. Thus, in the
exercise of its discretion, the Court DENIES Plaintiffs’ request for certification pursuant to Rule
54(b).
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Entry of Judgment or, in the
alternative, to Certify Order for Interlocutory Appeal and to Stay Proceedings Pending Appeal
(Doc. No. 130) is DENIED.
IT IS SO ORDERED.
Signed: April 25, 2019

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The only remaining claims in this action are the alternative claims of breach of good faith and fair dealing and
quantum meruit against Carstarphen Family Foundation and The Stowe Foundation.

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