Doe 1 et al v. Baylor University
ORDER DENYING 84 Motion to Certify Order for Interlocutory Appeal. Signed by Judge Robert Pitman. (jgb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JANE DOE 1, JANE DOE 2,
JANE DOE 3, JANE DOE 4,
JANE DOE 5, JANE DOE 6,
JANE DOE 7, JANE DOE 8,
JANE DOE 9, and
JANE DOE 10,
Before the Court in the above-entitled matter is Defendant Baylor University’s
(“Defendant”) Motion to Certify Order for Interlocutory Appeal. Having considered the filing and
responsive pleadings thereto, relevant law, and the case file, the Court enters the following Order.
This suit involves ten plaintiffs who allege they were sexually assaulted by fellow students
while attending Baylor University. Plaintiffs seek to hold Baylor liable under Title IX of the
Education Amendments of 1972 (“Title IX”). Title IX provides that “[n]o person in the United
States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). On March 7, 2017, the Court entered an Order resolving several
motions to dismiss. (Order, Dkt. 78). Following the entry of that Order (“Order”), the live claims in
the above-entitled matter include (1) the post-reporting claims of Does 1, 3, 4, 8, 9, and 10; and (2)
all Plaintiffs’ heightened-risk claims.
Baylor filed the instant motion on March 24, 2017. (Mot. Certify Appeal, Dkt. 84). The
motion asks the Court, pursuant to 28 U.S.C. § 1292(b) (“Section 1292(b)”), to certify its Order for
interlocutory appeal. (Id. at 1–2). Baylor asserts that the Order “dramatically expands both the scope
of liability under Title IX and the applicable limitations period” and “has far-reaching implications
for Baylor generally and for schools across the circuit and the country.” (Id. at 1). Plaintiffs oppose
Defendant’s motion. (See Resp., Dkt. 85).
II. STANDARD OF REVIEW
Courts of appeals “have jurisdiction of appeals from all final decisions of the district courts
of the United States.” 28 U.S.C. § 1291. Section 1292(b) provides a narrow exception to this rule:
Where 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. The Court of Appeals which would have jurisdiction
of an appeal of such action may thereupon, in its discretion, permit an appeal
to be taken from entry of the order: Provided, however, That application for an
appeal hereunder shall not stay proceedings in the district court unless the
district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b). In sum, after issuing an otherwise nonappealable order, a district judge may
certify the order for interlocutory appeal when (1) a controlling question of law is involved, (2) there
is a substantial ground for difference of opinion about the question of law, and (3) immediate appeal
will materially advance the ultimate termination of the litigation. Rico v. Flores, 481 F.3d 234, 238 (5th
Cir. 2007). All three of these criteria must be met for an order to properly be certified for
interlocutory appeal. Clark–Dietz & Assocs.–Eng’rs v. Basic Constr. Co., 702 F.2d 67, 69 (5th Cir. 1983).
Interlocutory review is reserved for “exceptional” cases, as the basic structure of appellate
jurisdiction disfavors piecemeal appeals. Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996); Clark–Dietz,
702 F.2d at 69. The decision to certify an interlocutory appeal pursuant to Section 1292(b) is within
the discretion of the trial court and unappealable. In re Air Crash Disaster, 821 F.2d 1147, 1167 (5th
Cir. 1987) (citing In re McClelland Eng’rs, Inc., 742 F.2d 837, 839 (5th Cir. 1984), cert denied, 469 U.S.
Having examined the instant motion under the standard identified above, the Court
concludes Defendant has failed to meet its burden with respect to the third criterion: whether
immediate appeal will materially advance the ultimate termination of the litigation.
The Court acknowledges that the availability of review under Section 1292(b) is not limited
to those situations in which decision on an issue would result in a complete dismissal. See Garner v.
Wolfinbarger, 430 F.2d 1093, 1097 (5th Cir. 1970). However, “[t]he Fifth Circuit has held that
certification is particularly inappropriate when a party has claims remaining for adjudication by the
finder of fact.” In re L.L.P. & D. Marine, Inc., No. Civ. A. 97-1668, 1998 WL 66100, at *2 (E.D. La.
Feb. 13, 1998) (citing United States v. Bear Marine Servs., Inc., 696 F.2d 1117, 1120 (5th Cir. 1983);
Spurlin v. Gen. Motors Corp., 426 F.2d 294, 294–95 (5th Cir. 1970)). Here, an interlocutory appeal of
the issues identified by Defendant—even if successful—would not resolve the claims of four
plaintiffs. In contrast, allowing the litigation to proceed could obviate Defendant’s need for an
appeal. For instance, if (1) Plaintiffs’ heightened-risk claims were unable to survive a motion for
summary judgment or (2) a jury were to find Plaintiffs failed to meet their burden as to those claims,
the analysis of heightened-risk claims in the Order would be moot.
Because interlocutory appeal would not eliminate the need for a determination on the postreporting claims of four plaintiffs, the Court considers whether Baylor has shown that interlocutory
appeal of the heightened-risk issue would (1) significantly narrow the scope of evidence; or
(2) simplify or shorten future analysis or trial. See, e.g., Releford v. City of Houston, 2016 WL 7051662, at
*4 (S.D. Tex. Dec. 5, 2016) (“Although a favorable appellate decision for the City on its proposed
question may narrow the scope of evidence or issues, it will not result in automatic summary
judgment for the City. The case could continue to proceed to trial. Therefore the question . . . would
not promise to hasten the termination of litigation.”); Coates v. Brazoria Cty., 919 F. Supp. 2d. 863,
868 (S.D. Tex. 2013) (“Because the interlocutory appeal will not eliminate the need for trial on the
other claims, the [defendant] would have to show that an appeal of [one] issue would simplify or
shorten the inevitable trial.”). Here, the remaining post-reporting claims will likely require much of
the same evidence, examination, and argument as Plaintiffs’ heightened-risk claims. Granting the
instant motion will thus neither significantly narrow the scope of evidence nor substantially shorten
future analysis or trial.
Defendant’s argument on this point is especially unconvincing given the fact that the Court,
because it found Plaintiffs met their burden under the official-policy rubric, did not evaluate
Plaintiffs’ heightened-risk claims under the actual notice and deliberate indifference framework.
(Order, Dkt. 78, at 17 n.7). Even if Defendant’s appeal were successful, those Plaintiffs whose preassault claims survived the motion to dismiss stage might remain in the litigation (thereby mitigating
any alleged narrowing of the scope of evidence).
The Court therefore concludes that Defendant has not met its burden with respect to
whether immediate appeal will materially advance the ultimate termination of the litigation. Because
that burden must be met in order for Defendant to prevail, see Clark–Dietz, 702 F.2d at 69, the Court
finds that Defendant’s motion should be denied.
For the foregoing reasons, IT IS HEREBY ORDERED that Baylor’s Motion to Certify
Order for Interlocutory Appeal, (Dkt. 84), is DENIED.
SIGNED on May 1, 2017.
UNITED STATES DISTRICT JUDGE
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