White v. Adena Health System et al
Filing
76
OPINION AND ORDER denying 69 Motion for Certificate of Appealability; denying 73 Motion to Strike ; granting 74 Motion for Extension of Time to File Response/Reply. Signed by Judge George C. Smith on 12/6/18. (sh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JENNIFER S. WHITE,
Plaintiff,
Case No. 2:17-cv-593
V.
JUDGE GEORGE C. SMITH
Magistrate Judge Vascura
ADENA HEALTH SYSTEM, et aL,
Defendants.
OPINION AND ORDER
This matter is before the Court upon Plaintiff Jennifer S. White's Motion for Certification
of the Court's July 11, 2018 Opinion and Order and Motion to Stay the Proceedings ("White's
Motion for Certification") (Doc. 69). Defendant Perfusion Professionals, Inc. ("PPI") filed a
response in opposition (Doc. 72).' The remaining defendants have not filed responses in
opposition and the time to do so has now expired. For the following reasons. White's Motion for
Certification is DENIED.
I.
BACKGROUND
Plaintiff Jennifer S. White commenced this action on July 10, 2017. (Doc. 1). In her
Amended Complaint, she asserted various causes of action arising out of PPI'stermination of her
' White moved to strike PPI's response because PPI filed it two after the deadline to do so had passed. (Doc. 73).
Shortly after. PPI moved for atwo-day extension oftime such that its response may be deemed timely. (Doc. 7475). The Court finds that White was not prejudiced by PPI's late filing and that PPI has demonstrated excusable
neglect; accordingly. White's Motion to Strike is DENIED and PPI's Motion for Extension ofTime isGRANTED.
employment in June of 2016. (Doc. 25). A detailed summary of the underlying facts is contained
in the Court's July 11,2018 Order resolving the defendants' Motions to Dismiss (Doc. 64).
In brief, White asserted that she made complaints ofsex-and religion-based discrimination
to her supervisors while employed by Defendant Adena Health System ("Adena"), and that she
was wrongfully terminated from employment by Adena in April 2015 as a result. Prior to
commencing any litigation. White and Adena reached a settlement imposing certain non-
disparagement obligationson Adena. White later pursued and obtained employment in 2016 with
PPl, who hired her to work on site at Defendant Southern Ohio Medical Center ("SOMC").
However, shortly after White began working for PPl, PPl terminated her employment, citing
SOMC's concerns that she had filed a lawsuit against Adena. White commenced this action,
asserting, inter alia, that Adena had breached its non-disparagement obligations, tortiously
interfered with White's employment relationship with PPl, and retaliated against White in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e ei seq. ("Title VIl") and Ohio
Revised Code Chapter 4112 ("Chapter 4112") by informing SOMC of her wrongful termination
claims; that PPl and SOMC terminated her employment, and retaliated against her, in violation of
Title VII and Chapter 4112; that PPl breached an employment contract when it terminated her
employment; and that SOMC had tortiously interfered with her employment relationship with PPl
by requiring PPl to terminate White's employment.
All defendants moved to dismiss. On July 11, 2018, the Court granted those motions
except as relating to White's claims against Adena for Chapter 4112 retaliation and tortious
interference. (Doc. 64). White now moves for certification under Federal Rule ofCivil Procedure
54(b) so that she may immediately appeal the portions ofthe July II, 2018 order dismissing her
claims.
II.
STANDARD OF REVIEW
Rule 54(b) of the Federal Rules of Civil Procedure "allows a district court to enter a final
judgment 'on one or more claims, or as to one or more parties, in a multi-claim/multi-party
action.'" Pittman ex rel. Sykes v. Franklin, 282 P. App'x 418, 429-30 (6th Cir. 2008) (quoting
Fed. R. Civ. P. 54(b)). "The rule attempts to strike a balance between the undesirability of
piecemeal appeals and the need for making review available at a time that best serves the needs of
the parties." Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60 (6th Cir. 1986). In determining
whether a 54(b) ruling is justified, the Court must consider five factors:
(l)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
beobliged to consider the same issue a second time; (4) the presence orabsence 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, economic and solvency
considerations, shortening the time oftrial, frivolity ofcompeting claims, expense,
and the like."
Pittman, 282 F. App'x at430 (quoting Corrosioneering. Inc. v. Thyssen Envtl. Sys., Inc., 807 F.2d
1279, 1283 (6th Cir. 1986)). While a district court has broad discretion in deciding a motion for
certification where fewer than all claims have been adjudicated, "Rule 54(b) is not to be used
routinely or as a courtesy or accommodation to counsel." Corrosioneering, 807 F.2d at 1282
(citation omitted). Rather, "[t]he power which this Rule confers upon the trial judge should be
used only in the infrequent harsh case as an instrument for the improved administration ofjustice."
Id (citation omitted).
III.
DISCUSSION
In considering Plaintiffs Motion for Certification, the Court will discuss each of the
Corrosioneering factors in turn.
Plaintiffprimarily relies on the first factor, arguing that the adjudicated and unadjudicated
claims are "separate and distinct from one another." (Doc. 69, Mot. at 6). However, Plaintiffdoes
not explain how the adjudicated and unadjudicated claims are distinct. Indeed, as PPI points out,
most of White's claims turn on what PPI and SOMC were told by representatives of Adena
regarding White's former employment. (Doc. 72, Resp. at 1.)^ This factor therefore weighs
against certification. Moreover, "[gjenerally, a finding that an issue being considered for Rule
54(b)certification is 'separate and distinct' from remaining issues in a case will begin, rather than
end, the districtcourt's certification analysis." Corrosioneering, 807 F.2d at 1283.
As to the second factor, the Court does not foresee any realistic danger that the need for
review might bemooted by future developments in the district court. This factor primarily comes
into play when a party seeks to appeal an issue related to damages or indemnity before the district
court has issued a final ruling on liability. See, e.g., Corrosioneering, 807 F.2d at 1284; Gen.
Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1031 (6th Cir. 1994). That is not the situation
before the Court. Yet, while this factor does not weigh against certification, nothing related to this
factor would make an immediate appeal especially desirable.
The third factor weighs against certification because there is a non-trivial possibility that
the reviewing court might be obliged to consider the same issue a second time. The remaining
claims against Adena turn on many of the same facts as the dismissed claims, and therefore an
appeal ofthe remaining claims at the conclusion ofthe case may well involve the same i.ssues as
the requested immediate appeal.
The only possible exceptions in the Court's view are White's claims for breach ofemployment contract and
promissory estoppel against PPI, which the Court dismissed based on the lack ofany contract or promise
guaranteeing White employment for a specified term. (Doc. 17, Order at 17-19.)
The fourth factor is not implicated here because there are no claims or counterclaims that
could result in setoff.
Finally, the Court considers "miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of competing claims, expense, and the like."
As in most cases. White will be delayed in obtaining a possible judgment against the dismissed
defendants ifshe must wait until this Court disposes of herremaining claims to appeal the July 11.
2018 Order; but an immediate appeal would also certainly delay resolution of White's remaining
claims—in fact, in conjunction with her Motion for Certification, White also requests a stay of
proceedings pending the outcome of an immediate appeal. (Doc. 69, Mot. at 8). Accordingly, the
Court does not find any miscellaneous factors to weigh heavily either for or against certification.
Against the backdrop of Rule 54(b)'s purpose of avoiding piecemeal appeals, the Court
cannot say that there is no just reason to delay an appeal of its July 11, 2018 Order. Certification
of the Order for immediate appeal is therefore inappropriate.
IV.
CONCLUSION
For the foregoing reasons. White's Motion for Certification (Doc. 69) is DENIED.
Further, White's Motion to Strike (Doc. 73) is DENIED and PPI's Motion for Extension of Time
(Doc. 74) is GRANTED.
The Clerk shall remove Documents 69,73, and 74 from the Court's pending motions list.
IT IS SO ORDERED.
/s/Georse C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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