LeFever v. Ferguson et al

Filing 151

ORDER re 146 8/29/13 Order on Plaintiff Virginia LeFever's Motion for Certification. Signed by Judge Gregory L Frost on 9/24/13. (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
On August 29, 2013, this Court granted Plaintiff Virginia LeFever’s motion for
certification under Fed. R. Civ. P. 54(b) with respect to Plaintiff’s Brady-based claim for relief
under 42 U.S.C. § 1983 and entered judgment accordingly. (ECF Nos. 146, 147.) Plaintiff
immediately filed her notice of appeal to the Sixth Circuit Court of Appeals that same day. (ECF
No. 148.)
On September 5, 2013, Defendant James Ferguson filed his memorandum in response to
Plaintiff’s motion for Rule 54(b) certification. (ECF No. 149.) Plaintiff has filed a reply to

1

Defendant Ferguson’s response. (ECF No. 150.) The matter is before the Court to address
matters contained in those filings.
The Court acknowledges, as Ferguson points out in his memorandum, that the Court
issued its ruling on Plaintiff’s motion for Rule 54(b) certification before Ferguson’s time for
responding to the motion had expired. Be that as it may, and notwithstanding the salient points
against Rule 54(b) certification that Ferguson argues in his opposition, the Court has no power to
reconsider its certification and entry of judgment allowing Plaintiff to take an immediate appeal.
Plaintiff’s filing of a notice of appeal divested this Court of jurisdiction to revisit its grant of
Rule 54(b) relief. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).
The Court remains of the belief that Rule 54(b) certification is proper, as there is no just
reason for delaying consideration of an appeal of this Court’s ruling that Defendant Ferguson is
entitled to qualified immunity for alleged Brady violations. The Court recognizes, however, that
Ferguson’s memorandum makes the question of certification a closer case than the Court
previously deemed it to be. But the question of whether the certification ruling was proper is out
of this Court’s hands. Because Plaintiff’s prompt notice of appeal divested this Court of
jurisdiction to reconsider its Rule 54(b) ruling, Ferguson will have to raise that issue, if he
wishes, at the Sixth Circuit Court of Appeals.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

2