Bailey et al v. Verso Corporation

Filing 50

ORDER AND ENTRY DENYING DEFENDANTS MOTION FOR AN INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS IN THIS COURT (DOC. 47 ). Signed by Magistrate Judge Michael J. Newman on 2/15/2019. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CLIFFORD BAILEY, et al.,
Plaintiffs,

Case No. 3:17-cv-332

vs.
VERSO COPRPORATION,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.
______________________________________________________________________
ORDER AND ENTRY DENYING DEFENDANT’S MOTION FOR AN INTERLOCUTORY APPEAL
AND TO STAY PROCEEDINGS IN THIS COURT (DOC. 47)
______________________________________________________________________
This civil consent case is before the Court on Defendant’s motion
to file an interlocutory appeal and to stay proceedings in this Court
pending such appeal.

Doc. 47.

opposition to Defendant’s motion.
a reply.

Doc. 49.

Plaintiffs filed a memorandum in
Doc. 48.

Thereafter, Defendant filed

The Court has carefully considered all of the

foregoing, and Defendant’s motion is ripe for decision.
Courts of appeal lack “jurisdiction to review an order of the
district court unless it is a final decision or otherwise appealable as
an interlocutory order under 28 U.S.C. § 1292(b) or a decision certified
under Fed. R. Civ. P. 54(b).”

Bosley v. Buckeye Fed. Sav. & Loan Ass’n,

928 F.2d 1132, 1132 (6th Cir. 1991).

Defendant seeks to appeal this

Court’s interlocutory Order denying Defendant’s motion for judgment on
the pleadings under 28 U.S.C. § 1292(b), which states:
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 [or she] shall so state in writing
in such order.
28 U.S.C. § 1292(b).
To “certify an order for interlocutory appeal[,]” the undersigned
must be “ ‘of the opinion’ that three conditions exist: ‘[1] the order
involves a controlling question of law to which there is [2] substantial
ground for difference of opinion and ... [3] an immediate appeal may
materially advance the termination of the litigation.”
F.3d 948, 951 (6th Cir. 2017) (emphases omitted).

In re Trump, 874
“The decision to

certify an appeal pursuant to section 1292(b) is left to the sound
discretion of the district court.”

Sigma Fin. Corp. v. Am. Int’l

Specialty Lines Ins. Co., 200 F. Supp. 2d 710, 723 (E.D. Mich. 2002).
In exercising such discretion, the undersigned is mindful that permitting
appeals

of

interlocutory

orders

under

§

1292(b)

should

be

done

“sparingly” and “only in exceptional cases where an intermediate appeal
may avoid protracted and expensive litigation.”

Kraus v. Bd. of Cnty.

Rd. Comm’rs for Kent Cnty., 364 F.2d 919, 922 (6th Cir. 1966).
In the Order Defendant seeks to appeal, the undersigned denied
Defendant’s

Rule

12(c)

motion

after

finding

that

the

terms

of

a

collective bargaining agreement (“CBA”) between the parties is patently
ambiguous.

Doc.

46.

Such an issue, while one of law, is not the type

of controlling issue § 1292(b) is meant to address.

Cf. Ahrenholz v.

Bd. of Tr. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000) (“[T]he
question of the meaning of a contract, though technically a question of
law when there is no other evidence but the written contract itself, is
not what the framers of section 1292(b) had in mind”); Liberty Ins.
Underwriters, Inc. v. Westport Ins. Corp., No. 04 CV 01856 WYD BNB, 2006
2

WL 2734304, at *2 (D. Colo. Sept. 25, 2006) (“[T]he Court’s legal
conclusion that” a particular contractual provision “is ambiguous is not
a ‘pure’ legal issue as contemplated by § 1292(b)”; Aristocrat Leisure
Ltd. v. Deutsche Bank Tr. Co. Ams., 426 F. Supp. 2d 125, 128 (S.D.N.Y.
2005) (“While the meaning of a contract generally is considered to be a
question of law for the court, a question of contract interpretation
typically is not a “controlling question of law” that serves as a basis
for interlocutory appeal”); Catskill Dev., L.L.C. v. Park Place Entm’t
Corp., 206 F.R.D. 78, 94 (S.D.N.Y. 2002) (“Differences over contract
construction are not the sort of ‘controlling question of law’ that
normally gives rise to interlocutory certification”).
Based on the foregoing, the Defendant’s motion (doc. 47) is DENIED.
IT IS SO ORDERED.

Date: February 15, 2019

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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