Bard v. Brown County et al

Filing 121

ORDER setting case for trial. Final pretrial conference set for 6/18/19 at 10:00 a.m. in Chambers. Jury Trial set for 7/29/2019 at 9:30 AM in Courtroom 7 - Cincinnati before Judge Susan J. Dlott. Denying 118 MOTION for Mandate filed by Ashley Bard.. Signed by Judge Susan J. Dlott on 4/2/19. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Ashley Bard, individually and as the
administrator for the Estate of Zachary
Ryan Goldson,
Plaintiff,
v.
Brown County, Ohio, et al.,
Defendants.

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Case No. 1:15-cv-643
Judge Susan J. Dlott
Order Setting Case for Trial

On February 13, 2019, the Court issued summary judgment in favor of Defendants on
Plaintiff’s claims for violation of Zachary Ryan Goldson’s Fourth and Fourteenth Amendment
rights pursuant to 42 U.S.C. § 1983, negligence, assault and battery, wrongful death and
spoliation. (Doc. 115.) In so ruling, the Court held that the individual Defendants were entitled
to qualified immunity on the constitutional claims asserted against them in their individual
capacities. The Court also granted summary judgment to all Defendants except Deputy
Wedmore on the claim for intentional infliction of emotional distress. (Id.) Only the intentional
infliction of emotional distress claim against Deputy Wedmore remains pending for trial.
The Court held a scheduling conference on March 5, 2019, during which Plaintiff
requested the Court to permit her to file an interlocutory appeal on the grant of qualified
immunity to the individual Defendants on the constitutional claims. Defendants opposed the
request stating that an appeal was not appropriate until after a trial on the intentional infliction of
emotional distress claim against Deputy Wedmore, unless Plaintiff agreed to dismiss that claim
with prejudice. The parties then filed cross-briefs on the interlocutory appeal issue.

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I.
Plaintiff now concedes that she has no absolute right to an interlocutory appeal of the
constitutional claims. Courts of appeal have jurisdiction over “appeals from all final decisions of
the district courts.” 28 U.S.C. § 1291. On the other hand, “orders granting dismissal of fewer
than all claims on the basis of qualified immunity are not final, appealable orders.” Jackson v.
Jernigan, No. 17-5671, 2017 WL 6345757, at *1 (6th Cir. Aug. 30, 2017); see also Coe v.
Ziegler, 817 F.2d 29, 30 (6th Cir. 1987) (holding that an order granting immunity to less than all
of the defendants is not a final, appealable order).
Plaintiff, nonetheless, requests that the Court issue a mandate pursuant to Rule 54(b) of
the Federal Rules of Civil Procedure. The Rule authorizes a district court to “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). A district court
assessing whether there is no just cause for delay examines “the relationship between the claims,
the possibility that the appeal might become moot, the possibility of repeat adjudications, the
existence of potential counterclaims, and the existence of other factors such as expense, delay,
economic solvency, trial length, and frivolity of the claims[.]” Nat’l Credit Union Admin. Bd. v.
Jurcevic, 867 F.3d 616, 623 (6th Cir. 2017).
Plaintiff offers only the vague argument that if she proceeds to trial on the intentional
infliction of emotional distress claim then she “may be forced to present a theory of the case at a
trial . . . that would be contrary to [her] current theory thereby interfering and damaging [her]
appeal on the other issues.” (Doc. 118 at PageID 4713–4714.) However, a plaintiff’s decision to
pursue alternative, possibly conflicting, legal theories is not a sufficient basis for the Court to
issue a mandate for an interlocutory appeal. The constitutional claims and the intentional

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infliction of emotional distress claim arise from the same core of operative facts occurring during
a several hour period on the night that Goldson died. Permitting the case to proceed piecemeal
creates the possibility that the Sixth Circuit would have to examine the same facts in separate
appeals. Additionally, this Court will conduct a trial on the intentional infliction of emotional
distress claim in an expeditious manner. It would be a waste of judicial resources to resolve less
than all of Plaintiff’s claims before an appeal.
II.
Additionally, Plaintiff asks the Court to decline to exercise supplemental jurisdiction and
dismiss the intentional infliction of emotional distress claim without prejudice pursuant to 28
U.S.C. § 1367.1 The Court has discretion to decline to exercise supplemental jurisdiction if it
“has dismissed all claims over which it [had] original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Here, however, the Court will continue to exercise its supplemental jurisdiction over the
remaining state law claim in the interests of judicial economy. The parties and the Court have
expended significant time and resources litigating this case for more than three years, including
through numerous discovery disputes and multi-stage summary judgment proceedings. Of note,
Plaintiff’s failure to follow the Court’s rules and procedures needlessly delayed this litigation
and increased the Court’s and Defendants’ costs. The most expeditious path to final resolution is
to proceed to trial in this Court.
Finally, to the extent that Plaintiff’s request for the Court to dismiss the intentional
infliction of emotional distress claim without prejudice can viewed as a motion for voluntary
dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure, the Court denies that
request as well. Pursuant to Rule 41(a)(2), a district court may dismiss a claim upon a plaintiff’s
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Plaintiff requests this relief in conjunction with the request for a mandate. If the Court dismissed the pending
claim with or without prejudice, then the Order Granting in Part and Denying in Part Summary Judgment would
constitute a final, appealable order pursuant to § 1291 and no mandate would be necessary.
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motion “on terms that the court considers proper.” In determining whether to dismiss a claim
without prejudice, a district court should consider whether the defendants would suffer plain
legal prejudice greater than the mere prospect of a second lawsuit. See Grover v. Eli Lilly and
Co., 33 F.3d 716, 718 (6th Cir. 1994). In this case, Defendants would suffer plain legal prejudice
if the intentional infliction of emotional distress claim was permitted to be dismissed now and
refiled later after the completion of an appeal of the constitutional claims. Because the parties
are now past summary judgment and on the eve of trial, Defendants are entitled to resolution of
the final pending claim after more than three years of contentious litigation.
III.
For the foregoing reasons, the Court will not issue a Rule 54(b) mandate to allow Plaintiff
an interlocutory appeal of her constitutional claims, nor will it dismiss the intentional infliction
of emotional distress claim against Deputy Wedmore without prejudice. Rather, the Court sets
this matter for a final pretrial conference on June 18, 2019 at 10:00 a.m. and trial starting on July
29, 2019. The parties shall comply with the Court’s final pretrial and trial procedures set forth in
the Standing Order on Civil Procedures.
IT IS SO ORDERED.
Dated this 2nd day of April, 2019.
BY THE COURT:

S/Susan J. Dlott
Susan J. Dlott
United States District Judge

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