LeFever v. Ferguson et al

Filing 146

ORDER granting 145 Plaintiff's Motion for Fed. R. Civ. P. 54(b) certification. Signed by Judge Gregory L Frost on 8/29/13. (sem1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

VIRGINIA LeFEVER,
Plaintiff,

Case No. 2:11-cv-935
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers

v.
JAMES FERGUSON, et al.,
Defendants.

ALEX LeFEVER,
Plaintiff,

Case No. 2:12-cv-664
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers

v.
JAMES FERGUSON, et al.,
Defendants.

ORDER
This matter is before the Court on Plaintiff Virginia LeFever’s motion to certify this
Court’s decision for appeal under Fed. R. Civ. P. 54(b). (ECF No. 145.) For the reasons set
forth below, the Court GRANTS Plaintiff’s motion for finality certification.
On July 15, 2013, this Court granted in part and denied in part the motion for summary
judgment of Defendant James Ferguson. (ECF No. 141.) The Court granted Ferguson summary
judgment on Plaintiff’s claim alleging a violation of 42 U.S.C. § 1983 premised upon Ferguson’s
alleged violation of Brady v. Maryland, 373 U.S. 83 (1963). (Id. at PageID# 4782-88.) The
Court found that Ferguson was entitled to qualified immunity from liability on Plaintiff’s due
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process claim based on Ferguson’s alleged Brady violation. (Id.) The Court denied Ferguson
the benefit of qualified immunity, however, on Plaintiff’s Section 1983 due process claim
premised upon Ferguson’s alleged fabrication of evidence against Plaintiff. (Id. at PageID#
4788-90.)
Ferguson filed a notice of appeal to the Sixth Circuit, taking an interlocutory appeal of
right from the Court’s denial of qualified immunity with respect to Plaintiff’s claim based on
Ferguson’s alleged fabrication of evidence. (ECF No. 143.) Plaintiff now asks this Court to
certify its decision granting qualified immunity as to her Brady claim in order to allow Plaintiff
to pursue a cross-appeal of that issue in the Sixth Circuit. Plaintiff contends that the Court’s
ruling is “final” within the meaning of Fed. R. Civ. P. 54(b) and that there is no just reason for
delaying her ability to appeal it. (Pl.’s Mot. 3, ECF No. 145 at PageID# 4816.)
Fed. R. Civ. P. 54(b) provides a mechanism through which a district court may release a
case for immediate appeal of a final decision involving one or more claims or parties before
entry of final judgment as to all matters in dispute. Corrosioneering, Inc. v. Thyssen Envtl. Sys.,
Inc., 807 F.2d 1279, 1282 (6th Cir. 1986). Rule 54(b) certification is appropriate where the court
has rendered a final decision with regard to one of the parties or claims and finds that there is no
just reason to delay appellate review. AbdulSalaam v. Franklin Cnty. Bd. Of Comm’rs, No. 06cv-413, 2009 U.S. Dist. LEXIS 87486 (S.D. Ohio Aug. 31, 2009). In Corrosioneering, the Sixth
Circuit has articulated the following non-exhaustive list of factors that the district court should
consider in ruling on a Rule 54(b) motion:
(1) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the district court; (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time; (4) the presence or
absence of a claim or counterclaim which could result in set-off against the
judgment sought to be made final; (5) miscellaneous factors such as delay,
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economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like. Depending upon the facts of the
particular case, all or some of the above factors may bear upon the propriety of
the trial court’s discretion in certifying a judgment as final under Rule 54(b).
Corrosioneering, 807 F.2d at 1283.
In this case, the Court finds that the adjudicated claims and the unadjudicated claims
involve the same issue of qualified immunity and the same factual record. The Sixth Circuit will
have to review the same underlying facts in order to address both the alleged Brady violation and
the alleged fabrication of evidence that forms the basis of Plaintiff’s Section 1983 claims. And
considering that both theories of liability involve the issue of qualified immunity, it would serve
the interests of judicial economy to allow Plaintiff to take an appeal from the decision granting
qualified immunity at the same time as Ferguson’s appeal from the Court’s denial of qualified
immunity. See AbdulSalaam, 2009 U.S. Dist. LEXIS 87486 at *4.
The second factor favors Rule 54(b) certification as well. The Court finds it highly
unlikely that the need for review might be “mooted” in the future. The Brady violation alleged
by Plaintiff is, in the Court’s view, the crown jewel of Plaintiff’s Complaint. Though the Court
granted summary judgment in Ferguson’s favor on Plaintiff’s Brady claim, the Court
acknowledges that the issue presented a novel question of law upon which Plaintiff would pursue
an appeal after final judgment. Moreover, as it relates to the third factor, allowing an appeal now
“will prevent the Sixth Circuit from having to reconsider the issues and facts relating to qualified
. . . immunity a second time” upon a post-trial appeal. AbdulSalaam at *4-5.
As to the fourth factor, there are no setoffs or counterclaims to consider. Finally, as to
the fifth factor, certifying an immediate appeal from the grant of qualified immunity to Ferguson
on Plaintiff’s Brady claim will streamline the appeal process by allowing all the qualified
immunity issues to come before the Sixth Circuit at once instead of in sequential appeals. Id. at
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*5. Further, by certifying its decision and preventing the possibility of sequential appeals, the
Court would also reduce the chance of having to convene two trials (i.e., a new trial in the event
the Sixth Circuit reversed on the Brady issue following a first trial).
Upon consideration of the relevant factors and the circumstances of the present case, the
Court finds no just reason to delay appellate review of the Court’s decision granting qualified
immunity to Defendant Ferguson on Plaintiff’s Brady-based Section 1983 claim. Accordingly,
the Court GRANTS Plaintiff’s motion for Fed. R. Civ. P. 54(b) certification. (ECF No. 145.)
The Clerk shall enter final judgment in favor of Defendant Ferguson on Plaintiff’s Section 1983
Brady claim alleged in Count I of Plaintiff’s Complaint.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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