Tri County Wholesale Distributors, Inc. et al v. Labatt USA Operating Co., LLC et al

Filing 96

ORDER denying 92 Motion for Certificate of Appealability. Signed by Judge Algenon L. Marbley on 2/12/2015. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TRI COUNTY WHOLESALE
DISTRIBUTORS, INC., et al.,

:
:
:
Plaintiff,
:
:
v.
:
:
LABATT USA OPERATING CO., LLC, :
et al.,
:
:
Defendants.
:
:

Case No. 2:13-CV-317

JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
I. INTRODUCTION
This matter comes before the Court on Plaintiffs’, Tri County Wholesale Distributors,
Inc. (“Tri County”) and the Bellas Company d/b/a Iron City Distributing (“Iron City”)
(collectively “Plaintiffs” or the “Distributors”), Motion to Certify Merit Decisions for
Interlocutory Appeal under 28 U.S.C. § 1292(b). (Doc. 92).
First, Plaintiffs seek certification of the following questions of law resolved in
Defendants’ favor in this Court’s January 6, 2014 Judgment on the Pleadings Order, (Doc. 66):
(1) Whether application of O.R.C. § 1333.85 (D) to this case would constitute an
unconstitutional taking of private property without due process.
Second, Plaintiffs seek this Court’s certification of the following questions of law resolved in
Defendants’ favor in this Court’s December 11, 2014 Summary Judgment Order, (Doc. 91):
(1) Whether a successor manufacturer under O.R.C. § 1333.85 (D) of the Ohio Alcoholic
Beverages Franchise Act (“Franchise Act” or “Act”) must be a “manufacturer” as that
term is defined under O.R.C. § 1333.82(B);
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(2) Whether a parent-holding company that purchases 100 % of a manufacturer in a remote
transaction qualifies as a “successor manufacturer” such that it has a right to avail itself
of § 1333.85(D), even when the corporate structure and the distribution contracts of the
licensed manufacturer purchased in the transaction remain in place.1
For the reasons set forth herein, Plaintiffs’ Motion is DENIED.
II. BACKGROUND
A. Factual Background
This action arises out of the termination of beer and flavored malt beverage distribution
contracts in alleged contravention of O.R.C. § 1333.82-7, the Ohio Alcoholic Beverages
Franchise Act (“Franchise Act” or “Act”), which governs the contractual relationship between
beer distributors and manufacturers. Plaintiffs, Tri County and Iron City, are Ohio distributors of
alcoholic beverages that have franchise relationships with Defendant, Labatt USA Operating. As
an entity that supplies alcoholic beverages to distributors in Ohio, Labatt USA Operating is a
“manufacturer” of beer and flavored malt beverages, as that term is defined in O.R.C. §
1333.82(B). (Doc. 77 at ¶ 7).
Labatt USA Operating is indirectly wholly owned by Defendant North American
Breweries Holdings, LLC (“NAB Holdings”). (Doc. 77 at ¶ 20). Prior to December 11, 2012, all
membership interests in NAB Holdings were owned by three entities: 1) KPS Special Situations
Fund III, LP; 2) KPS Special Situations Fund III (A), LP; and 3) KPS Capital Partners2
(collectively “KPS” or the “KPS entities”). Id. at ¶¶ 17, 20; KPS Ownership Chart, D. Ex. 1. By
a Unit Purchase Agreement dated October 25, 2012, Defendant Cerveceria Costa Rica, S.A.

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Plaintiffs actually seek to certify the question, “whether there can be a ‘successor manufacturer’ when there was no
change in the actual manufacturer.” This Court, however, disagrees that this is the correct question for review under
the precise facts of the instant case.
2
KPS Capital Partners include Richard Lozyniak, James Pendegraft, Kenneth Yartz, Peter Bodenham, Jeff Cardell,
Sandy Ford, and Mark Minunni.

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(“CCR”), through its affiliate CCR Breweries, Inc., contracted to buy 100% of the membership
interests in NAB Holdings from the KPS entities (the “KPS/CCR Transaction”). (Doc. 77 at ¶
23; P. Ex. 8). On December 11, 2012, KPS transferred all of its interests in NAB Holdings –
including the accompanying distribution rights – to CCR or one of its affiliates. (Doc. 77 at ¶¶
18, 22; P. Exs. 8, 9). As part of the KPS/CCR Transaction, CCR Breweries, Inc. was merged
into NAB Holdings with NAB Holdings being the surviving entity, resulting in CCR American
Breweries, Inc. owning 100% of NAB Holding’s membership interests. Id.; P. Ex. 9. From
December 11, 2012 to the present, CCR American Breweries, Inc. has been owned 100% by
CCR. (Doc. 77 at ¶ 24).
Below the level of NAB Holdings, the various operating and licensing entities retained
the same corporate structure they had prior to the KPS/CCR Transaction. 3 Id. at ¶ 20; compare
KPS Ownership Chart, D. Ex. 1, with CCR Ownership Chart, P. Ex. 3. Following the KPS/CCR
Transaction, the Distribution Contracts between Plaintiffs and Labatt USA Operating remained

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The parties stipulate that, prior to and after December 11, 2012, the following were and continue to be true:
a.
b.
c.
d.
e.
f.

g.
h.
i.
j.
k.
l.

Defendant Labatt USA Operating has been owned 100% by Labatt USA Operating Holdings, LLC.
High Falls Operating Company (“High Falls Operating”) has been owned 100% by High Falls Operating
Holdings, LLC.
Labatt USA Operating Holdings, LLC and High Falls Operating Holdings, LLC have both been owned
100% by North American Breweries Operating Holdco, LLC.
North American Breweries Operating Holdco, LLC has been owned 100% by NAB Holdco, LLC.
North American Breweries Licensing Holdco, LLC has been owned 100% by NAB Holdco, LLC.
NAB Holdco, LLC has also owned 1 share of the 1,000 outstanding shares (0.1%) of 1793161 Ontario, Inc.
(“Ontario, Inc.), a Canadian entity. The other 999 shares of Ontario, Inc. (99.9%) are owned by Labatt
Brewing Company Limited, a Canadian entity unaffiliated with Defendants.
NAB Holdco, LLC has been owned 100% by North American Breweries, Inc.
North American Breweries, Inc. has been owned 100% by North American Breweries Intermediate
Holdings, LLC.
North American Breweries Intermediate Holdings, LLC has been owned 100% by Defendant NAB
Holdings.
High Falls Licensing Co., LLC has been owned 100% by High Falls Licensing Holdings, LLC.
Labatt USA Licensing Co., LLC has been owned 100% by Labatt USA Licensing Holdings, LLC.
High Falls Licensing Holdings, LLC and Labatt USA Licensing Holdings, LLC are both 100% owned by
North American Breweries Licensing Holdco, LLC.

(Doc. 77 at ¶ 20).

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in place, the Distributors continued to order the Specified Brands from Labatt USA Operating,
and the Specified Brands continued to be invoiced to the Distributors by Labatt USA Operating.
In March of 2013, Distributors received letters from CCR purporting to terminate the
Distribution Contract between them and Labatt USA Operating. (Doc. 77 at ¶ 12-13). The sole
basis on which Defendants relied to terminate the Distributors’ distribution rights was the
successor manufacturer provision of Ohio Rev. Code §1333.85(D). (Doc. 77 at ¶ 14).
B. Procedural History
On April 4, 2013, Plaintiffs filed a complaint alleging breach of contract and additionally
sought a declaratory judgment, asking the Court to find one of the following: (1) that Defendants
are prohibited from terminating their existing distribution franchises with Labatt pursuant to
O.R.C. § 1333.85(D); (2) or that O.R.C. § 1333.85(D) so-applied would constitute an
unconstitutional taking; and, (3) a determination of the diminished value of Defendants’ business
pursuant to § 1333.851 of the Franchise Act should the Defendants prevail on the preceding three
counts. (Doc. 1).
On April 11, 2014, Plaintiffs moved for a preliminary injunction seeking to enjoin
Defendants from terminating their contracts and from taking any actions that would frustrate or
prevent delivery of the brands at issue. (Doc. 9). Following a preliminary injunction hearing, the
Court granted Plaintiffs’ preliminary injunction on October 16, 2013, but only on one basis.
(Doc. 56). The Court found fair ground in litigation on Distributors’ argument against
application of § 1333.85(D) to written franchises contracts, because that issue had been accepted
for discretionary review by the Ohio Supreme Court, and the decision was pending. See Esber
Beverage Co. v. Labatt USA Operating Co., 2013-Ohio-4544, 138 Ohio St. 3d 71
reconsideration denied, 2014-Ohio-566, 138 Ohio St. 3d 1418.

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The Court also held, however, that Plaintiffs were unlikely to succeed on the merits on
the following proposed findings of law: (1) CCR is not a “successor manufacturer” for the
purposes of O.R.C. § 1333.85(D); (2) Distribution Contracts preclude a successor manufacturer
from terminating pursuant to O.R.C. § 1333.85(D) absent a basis under the contracts for such
termination; and, (3) Defendants’ termination of the contracts pursuant to O.R.C. §1333.85(D)
constitutes an unconstitutional taking.
On October 17, 2013, however, the Ohio Supreme Court issued its opinion in Esber,
holding that O.R.C. §1333.85(D) permitted a “successor manufacturer” to terminate a written
franchise agreement, without cause, assumed in its purchase of another manufacturer, brand, or
product. Id. Subsequently, Defendants moved this Court to vacate its preliminary injunction
order pursuant to the holding in Esber. This Court found in Defendants’ favor on August 14,
2014. (Doc. 73). Then, Plaintiffs appealed the Court’s order vacating the preliminary injunction,
and that appeal is currently pending before the Sixth Circuit.
In addition, on May 9, 2013, Defendants moved for judgment on the pleadings requesting
the Court to dismiss Count Three—that termination of the contracts pursuant to O.R.C.
§1333.85(D) would constitute an unconstitutional taking. The Court granted Defendants’ motion
on January 6, 2014, holding that though termination of the Plaintiffs’ contracts resulted in
consequential losses, those losses did not amount to a taking under the United States or Ohio
Constitutions. (Doc. 66).
On September 15, 2014, Defendant moved for Partial Summary Judgment, (Doc. 78), and
Plaintiff moved for Summary Judgment. (Doc. 80). The Court granted summary judgment to
Defendants on Distributors’ claims for breach of contract (Count I), and violation of the

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Franchise Act, under O.R.C. §1333.85(D), thus resolving the legality of the Defendants’
termination of Distributors. (Doc. 91). The Court denied Plaintiff’s Motion. Id.
III. STANDARD OF REVIEW
The standard for when an interlocutory appeal will be permitted is set forth in 28 U.S.C.
§ 1292(b):
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion 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, he shall so state in writing in
such order.
28 U.S.C. § 1292(b). Allowing for interlocutory appeal is generally disfavored and should be
applied sparingly, in only exceptional cases. In re City of Memphis, 293 F.3d 345, 350 (6th
Cir.2002); U.S. ex rel. Elliott v. Brickman Group Ltd., LLC, 845 F.Supp.2d 858, 863 (S.D.Ohio
2012); Takacs v. Hahn Automotive Corp., No. C-3-95-404, 1999 WL 33117266, at *1 (S.D. Ohio
1999. “Attractive as it may be to refer difficult matters to a higher court for advance decision,
such a course of action is contrary to our system of jurisprudence.” U.S. ex rel. Elliott 845
F.Supp.2d at 863. (internal quotations omitted).
As the Sixth Circuit explained, “‘Congress intended that section 1292(b) should be
sparingly applied. It is to be used only in exceptional cases where an intermediate appeal may
avoid protracted and expensive litigation and is not intended to open the floodgates to a vast
number of appeals from interlocutory orders in ordinary litigation.’” Kraus v. Bd. of Cnty. Road
Comm'rs of the Cnty. of Kent, 364 F.2d 919, 922 (6th Cir.1966).
In determining whether to certify a matter for interlocutory appeal, the Court must decide
whether: “(1) the order involves a controlling question of law, (2) a substantial ground for

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difference of opinion exists regarding the correctness of the decision, and (3) an immediate
appeal may materially advance the ultimate termination of the litigation.” In re City of Memphis,
293 F.3d 345, 350 (6th Cir.2002). “The burden of showing exception circumstances justifying an
interlocutory appeal rests with the party seeking review.” Trimble v. Bobby, No. 5:10–CV–
00149, 2011 WL 1982919, at *1 (N.D.Ohio May 20, 2011).
IV. ANALYSIS
Plaintiffs argue that the three questions they wish to certify meet the Sixth Circuit’s threeprong test for determining whether to certify a matter for interlocutory appeal pursuant to 28
U.S.C. § 1292(b). Defendant responds that such interlocutory appeals are reserved for
exceptional cases, and that this is not one. This Court will now analyze the three proposed
questions for interlocutory appeal pursuant to the three-part test.
A. The Three-Part Test
1. Controlling Questions of Law
Plaintiffs assert, and Defendants do not contest, that the three proposed issues for
interlocutory appeal are controlling questions of law that, once decided, would terminate
litigation except for the calculation of compensation owed to Distributors for the diminished
value of their businesses and remaining inventory should the appellate court find in favor of
Defendants. This Court agrees that the three issues present pure questions of law that would
determine, definitively, the outcome of the case. See In re City of Memphis, 293 F.3d at 350.
Accordingly, the first prong of the test is satisfied.
2. Substantial Grounds for a Difference of Opinion Regarding the Legal Question
In terms of the second certification factor, a substantial ground for difference of opinion
exists only when the “the question is difficult, novel and either a question on which there is little

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precedent or one whose correct resolution is not substantially guided by previous decisions,” and
where there is either a “difference of opinion exists within the controlling circuit,” or “the
circuits are split.” DRFP, LLC v. Republica Bolivariana de Venezuela, 945 F. Supp. 2d 890, 91718 (S.D. Ohio 2013) (citing U.S. ex rel. Fry v. Health Alliance of Greater Cincinnati, No. 1:03–
CV–00167, 2009 WL 485501, at *1 (S.D.Ohio Feb. 26, 2009)).
Plaintiffs argue that while this Court relied upon a number of authorities in resolving the
three issues it wishes to certify, those authorities did not decide the precise issues presented in
this case, and therefore do not present the kind of settled controlling authority that would
preclude interlocutory review. Essentially, Plaintiffs argue that the questions are ones of first
impression, and the Court’s decisions were not substantially guided by previous decisions.
Defendants retort that Plaintiffs utilize this motion to reargue issues that this Court has fully and
fairly considered on multiple occasions, and that no contrary authority exists giving rise to a
substantial ground for difference of opinion. Defendants argue that a long line of cases
interpreting the application of the Franchise Act and the “successor manufacturer” provision
preclude a finding of “substantial grounds for a difference of opinion” in this case. This Court
agrees.
a. Summary Judgment Motion
Plaintiffs argue that while the Court relied on several sources to determine whether the
CCR is a “successor manufacturer” entitled to avail itself of the O.R.C. § 1333.85(D), no court
has directly addressed the issue of whether an entity which is not a “manufacturer” within the
meaning of O.R.C. § 1333.82(B) can avail itself of O.R.C. § 1333.85(D). Further, Plaintiffs
argue no controlling authority exits stating that an entity such as CCR, a remote parent holiding
company, which purchases a manufacturer, can be a “successor” within the meaning of

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“successor manufacturer” when the licensed manufacturer with whom distributors have contracts
remains in place.
In its Opinion & Order, the Court rejected Plaintiffs’ strict reading of the term “successor
manufacturer” as it applied to CCR and the KPS/CCR transaction. The Court held that
considering the holdings in Esber Beverage Co. v. Labatt USA Operating Co., 2013-Ohio-4544,
138 Ohio St. 3d 71 reconsideration denied, 2014-Ohio-566, 138 Ohio St. 3d 1418, and its
extensive analysis of the legislative history of O.R.C. § 1333.85(D), “Plaintiffs’ efforts to
disaggregate the term ‘successor manufacturer’ misread §1333.85(D).” Accordingly, this Court
held that the “successor manufacturer”
is the entity which “acquires all or substantially all of the stock or assets of
another manufacturer through merger or acquisition or acquires or is the assignee
of a particular product or brand of alcoholic beverage from another
manufacturer,” and which, as a result of that acquisition of a manufacturer,
product, or brand, is tasked with making business decisions on how to operate
most efficiently in its newly acquired business of supplying or manufacturing
alcoholic beverages.”
(Doc. 91). The Court’s above definition of “successor manufacturer” relied upon a plain
reading of O.R.C. § 1333.85(D), and the type of transaction which triggers the just cause
exception. The Court also relied upon Esber to undermine Plaintiffs’ position that CCR
could not be a successor manufacturer because after it purchased 100% of Labatt USA
Operating, Labatt’s corporate structure and distribution contracts remained in place. This
Court followed Esber’s rationale that § 1333.85(D) permitted an entity which purchased
a manufacturer to terminate written contracts that it assumed in that transaction.
Additionally, this Court followed Esber’s rationale that so long as an entity completely
acquires a new manufacturer, product, or brand, even when the corporate structure of the
prior manufacturer essentially stays the same, that entity may avail itself of § 1333.85(D).

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Lastly, this Court relied upon Esber’s determination that a successor manufacturer need
not be a manufacturer within the strict definition of the Act, but need only be the entity
faced with making business decisions on how to operate most efficiently. Although the
issue prompting the Esber Court to define broadly “manufacturer” was different than in
the case sub judice, the Court can rely on such an interpretation to apply law to fact
accordingly.
While no court has dealt with the precise issue in this case, the fact that this court
addressed an issue of first impression does not in and of itself demonstrate the existence
of substantial ground for difference of opinion. Lang v. Crocker Park, LLC, No. 1:09 CV
1412, 2011 WL 3297865, at *3 (N.D. Ohio July 29, 2011) (citing Baden-Winterwood v.
Life Time Fitness, No. 2:06CV99, 2007 WL 2326877, at *3 (S.D. Ohio Aug. 10, 2007)
(“The fact that this Court addressed an issue of first impression . . . does nothing to
demonstrate a substantial ground for a difference of opinion as to the correctness of that
ruling.”). Instead, “serious doubt as to how an issue should be decided must exist in order
for there to be substantial ground for difference of opinion.” City of Dearborn v. Comcast
of Michigan III, Inc., No. 08-10156, 2008 WL 5084203, at *3 (E.D. Mich. Nov. 24,
2008) (citing Baden–Winterwood v. Life Time Fitness, 2007 WL 2326877 at *2
(S.D.Ohio August 10, 2007) (citing Kraus v. Bd. of County Rd. Commissioners for the
County of Kent, 364 F.2d 919, 921 (6th Cir.1966))). To gauge whether substantial
grounds for difference of opinion exits in the context of an issue of first impression, and
thus, whether serious doubt exists, this Court must “analyze the strength of the arguments
in opposition to the challenged ruling.” Lang v. Crocker Park, LLC, No. 1:09 CV 1412,
2011 WL 3297865, at *3 (N.D. Ohio July 29, 2011). This is because “28 U.S.C. §

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1292(b) is a rare exception to the final judgment rule” and thus “it is not intended merely
to provide an avenue for review of difficult rulings in hard cases.” Id. (holding “[t]he
dearth of cases treating this issue is not, by itself, sufficient to show that substantial
ground for difference of opinion is present in this case, despite the fact that Defendants
disagree with the court's interpretation of the statute.”).
Plaintiffs contend that since the cases on which this Court relied did not address the
precise issues at hand, they were not controlling. This Court concludes, however, that Plaintiffs
have not demonstrated “substantial doubt” simply by stating that the facts are novel and that no
precisely controlling authority exists. A long line of case law interpreting O.R.C. § 1333.85(D),
as well as a plain reading of the Act, substantially guided this Court’s decision. While Plaintiffs
may not agree with this Court’s interpretation of the Franchise Act or controlling case law, that is
not a consideration under § 1292(b). As Plaintiffs fail to put forth arguments in opposition to this
Court’s decision, or present authority undermining this Court’s decision, Plaintiffs have failed to
meet prong two of the test on the first two questions it wishes to certify. Alexander v. Provident
Life & Acc. Ins. Co., 663 F. Supp. 2d 627, 640 (E.D. Tenn. 2009) (finding second prong of §
1292(b) not satisfied where Plaintiff simply challenged the Court's application of law to the facts
rather than presenting a case where there are substantial disputes as to the applicable law).
b. Judgment on the Pleadings
Like the issues it wishes to certify from the Summary Judgment Order, Plaintiffs wish to
certify their “takings” claim from the Judgment on the Pleadings Order because it is an issue of
first impression on which there is no precisely controlling authority. Plaintiffs argued in their
Opposition to Defendants’ Judgment on the Pleadings Motion that an application of O.R.C. §
1333.85(D) was an unconstitutional taking because: (1) their franchise is property within the

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meaning of the takings clause; (2) there is governmental action because under O.R.C. §
1333.851, Defendants cannot transfer Distributor’s franchise without a court order; (3)
Defendants’ proposed application of § 1333.85(D) under the KPS/CCR transaction would be a
taking because it would nullify their franchise agreements, on which their businesses rely; and
(4) the taking would not be for public use.
In granting Defendants’ Motion for Judgment on the Pleadings, this Court relied on
Omnia Commercial Co. v. U.S., 261 U.S. 502 (1923) and Huntleigh USA Corp. v. United States,
525 F.3d 1370 (Fed. Cir. 2008), which held that even though contracts may be property within
the meaning of the Fifth Amendment, there is no taking where legislation indirectly results in a
consequential loss that frustrates a business purpose, and government takes nothing. Plaintiffs
argue that Omnia and Huntleigh do not settle the issue presented here because they both
addressed governmental action that only indirectly affected contractual rights, while, here,
§1333.85(D) directly and explicitly permits government action to result in taking property from
Plaintiffs. Plaintiffs cite to Cienega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003)
and Love Terminal Partners v. United States, 97 Fed. Cl. 355 (Fed. Cl. 2011), two cases it
believes address direct rather than indirect takings. Plaintiffs assert that these two cases support
its contention that a “substantial difference of opinion” exists on its taking claim. This Court,
however, dismissed both cases as inapposite in its Judgment on the Pleadings Order because
under those cases, legislation was passed after property rights had been established which was
aimed directly at taking those property interests away. In contrast, in the case sub judice §
1333.85(D) was in place when the contracts were entered into, and § 1333.85(D) itself permits
the cancellation of contracts.

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In sum, like in the previous section, the Plaintiffs only argument in opposition to the
Court’s ruling on the takings issue is that the issue is one of first impression, and that since the
cases on which this Court relied did not address the precise issues at hand, they were not
controlling. This Court finds that Plaintiffs cannot demonstrate “substantial doubt,” establishing
that substantial grounds for a difference of opinion exists on their takings claim simply by stating
that no other court has passed precisely on the issue they wish to certify. This Court relied on
clearly established law regarding regulatory takings and the plain language of § 1333.85(D).
Plaintiffs do not raise compelling arguments in opposition sufficient to show that this Court
should have serious doubt about its prior interpretations of case law Plaintiffs raised.
Accordingly, this Court holds that Plaintiffs have failed to meet prong two of the test on the third
question it wishes to certify. See Alexander 663 F. Supp. at 640.
3. Materially Advance this Litigation to its Ultimate Termination
Plaintiffs argue that that an interlocutory appeal of the Court’s merit decisions will
materially advance the ultimate termination of the litigation. There is no dispute that if the Sixth
Circuit finds in Distributors’ favor on any of the three challenged issues, it would bring an
immediate end to this litigation. Thus, a Sixth Circuit holding in favor of Plaintiffs would obviate
the necessity to address Count Four of the Complaint by conducting a hearing to determine the
diminished value of Plaintiffs’ business pursuant to § 1333.85(D) and § 1333.851.
While a one to two day hearing on Count Four would no longer be necessary if the
Appellate Court were to find in Plaintiffs’ favor, this Court finds that this minimal benefit in
advancing the litigation is not of the kind the legislature presumed when it passed § 1292(b).
Instead, “the significance of considering whether an appeal would materially advance the
ultimate termination of the litigation lies in whether exceptionally expensive and protracted

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litigation may be avoided.” Lang, 2011 WL 3297865, at *5 (citing Paschall v. Kansas City Star
Co., 605 F.2d 403, 406 (8th Cir.1979); Berry v. Sch. Dist. of Benton Harbor, 467 F.Supp. 721,
727 (W.D.Mich.1978)); see also Newsome v. Young Supply Co., 873 F. Supp. 2d 872, 876 (E.D.
Mich. 2012) (holding “the role of interlocutory appeal is diminished when a case is nearing trial
and large expenditures have already been made”).
In this case, parties have conducted all discovery, and all dispositive issues have been
resolved on summary judgment. All that remains for this Court to do is hold a one to two day
hearing pursuant to § 1333.85(D) and § 1333.851 on the costs owed to Plaintiffs as a result of
termination of the franchises. In Kraus v. Bd. of Cnty. Rd. Comm'rs for Kent Cnty., the Court
denied interlocutory appeal because only a few days would be required for a jury trial and, thus,
final disposition of the case. 364 F.2d 919, 922 (6th Cir. 1966). It held that such a case was not
of the “extraordinary type contemplated by § 1292 (b),” and that it was preferable to go through
with the brief trial to “avoid a piecemeal appeal.” Id.
Like in Kraus, this Court finds it preferable to deny interlocutory appeal and resolve the
remaining technical issue presented by Count Four in order to avoid a piecemeal appeal. This is
not an extraordinary case in which an interlocutory appeal might allow parties and this Court to
avoid protracted litigation. While the Court is aware that Plaintiffs’ appeal of this Court’s denial
of the protective order is currently pending before the Sixth Circuit, that protective order
addresses the same issues as those raised in this motion. Further, an appeal from the Summary
Judgment Order can be consolidated with the protective order appeal immediately after the brief
hearing on Count Four, which this Court will schedule promptly.
Finally, Plaintiffs are unlikely to experience any harsh effects as a result of this Court’s
denial of their motion for interlocutory appeal because they are likely to file for an appeal on all

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counts in their complaint pursuant to Fed. R. App. P. 3 and 4 immediately after this Court
resolves Count Four. In addition, pursuant to Fed. R. Civ. P. 62 (a), no execution may issue on a
judgment until fourteen days have passed after entry, and under Fed. R. Civ. P. 62(d), appellant
may obtain a stay from the district court by supersedeas bond upon or after filing a notice of
appeal. Abercrombie & Fitch, Co. v. ACE European Grp. Ltd., No. 2:11-CV-1114, 2014 WL
4915269, at *9 (S.D. Ohio Sept. 30, 2014)(“[p]ursuant to Rule 62 of the Federal Rules of Civil
Procedure, the district court may stay the proceedings to enforce a judgment pending an
appeal.”). Lastly, if for whatever reason the Plaintiffs are unable to obtain a stay of the judgment
from this Court, the Plaintiffs may move the appellate court for a stay pursuant to Fed. R. App.
P. 8.
Thus, Plaintiffs have not met the third prong of the § 1292(b) analysis.
IV. Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Certify Merit Decisions for Interlocutory
Appeal under 28 U.S.C. § 1292(b), (Doc. 92), is DENIED.
IT IS SO ORDERED.
s/ Algenon L. Marbley_____________
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE

DATED: February 12, 2015

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