Bond v. Chase Home Finance LLC

Filing 17

ORDER signed by Judge Rudolph T. Randa on 11/16/2012 DENYING 14 Motion for Automatic Stay; DENYING request for permission to file an interlocutory appeal. (cc: all counsel, hand-delivered to Michael Bond) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL BOND,
Plaintiff,
v.

Case No. 12-C-1050
(USCA No. 12-3614)

CHASE HOME FINANCE LLC,
Defendant.

DECISION AND ORDER

Pro se Plaintiff Michael Bond (“Bond”) has filed a notice of appeal from this
Court’s October 22, 2012, Decision and Order denying his motion for a preliminary injunction
pursuant to Rule 65 of the Federal Rules of Civil Procedure. Bond also filed a motion for an
automatic stay pursuant to Rule 62 of the Federal Rules of Civil Procedure.
No final judgment has been entered in this action.

Therefore, the Court

construes Bond’s appeal as including a request to certify his appeal pursuant to 28 U.S.C.
§ 1292(b).
Certification of Interlocutory Appeal
Interlocutory appeals are governed by 28 U.S.C. § 1292(b) which provides:
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.
An interlocutory appeal is available only when: (1) an “appeal presents a question of law; (2)
it is controlling; (3) it is contestable; (4) its resolution will expedite the resolution of the
litigation; and (5) the petition to appeal is filed in the district court within a reasonable amount
of time after entry of the order sought to be appealed.” Boim v. Quranic Literacy Inst., 291
F.3d 1000, 1007 (7th Cir. 2002). Thereafter, the Court of Appeals has discretion in permitting
an appeal from such an order. See 28 U.S.C. § 1292(b); In re Text Messaging Antitrust Litig.,
630 F.3d 622, 624 (7th Cir. 2010) (stating that the district court must give permission to allow
an interlocutory appeal before the Court of Appeals makes a final decision about an immediate
appeal). The criteria under 1292(b) are “conjunctive, not disjunctive.” Ahrenholz v. Bd. of
Trs., 219 F.3d 674, 676 (7th Cir. 2000). Section 1292(b) “must be used sparingly lest
interlocutory review increase the time and expense required for litigation.” Asher v. Baxter
Int’l Inc., 505 F.3d 736, 741 (7th Cir. 2007).
The first statutory criterion under § 1292(b) is that there must be a question of
law. A “question of law” under section 1292(b) must be a “pure” question of law, “something
the court of appeals could decide quickly and cleanly without having to study the record,” such
as “a question of the meaning of a statutory or constitutional provision, regulation, or common
law doctrine . . .” Ahrenholz, 219 F.3d at 676-77. Application of a legal standard is a question
of law. In re Text Messaging Antitrust Litig., 630 F.3d at 626. The preliminary injunction

2

decision in question does not involve a pure question of law. Instead, it would require the
court of appeals to examine the Complaint and the causes of action alleged in that Complaint.
The second statutory criterion under § 1292(b) is that the question of law must
be controlling. The cases do not interpret the term literally. Sokaogon Gaming Enter. Corp.
v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659 (7th Cir. 1996). “A question of law may
be deemed ‘controlling’ if its resolution is quite likely to affect the further course of the
litigation, even if not certain to do so.” Id. (citations omitted)). The questions of law
presented by the denial of the preliminary injunction are arguably controlling since the Court
determined that the likelihood of Bond’s success on the merits of any of his claims was
doubtful. However, Bond also was permitted to amend his Complaint with respect to his
claims under 42 U.S.C. § 3404 and/or § 3417. On October 24, 2012, Bond filed an amended
Complaint and a renewed motion for a preliminary injunction. To date, neither have been
addressed by the Court because Defendant Chase Home Finance LLC (“Chase Home”)
appeared in this action on November 1, 2012, and still has time to respond to those filings.
Thus, some of the legal issues will be revisited by this Court.
The third statutory criterion under § 1292(b) is that the question of law must be
contestable; i.e., that “substantial grounds for a difference of opinion on the issue exist.” Bond
fails to meet this criterion. The Court evaluated Bond’s claims that Chase Home has harassed
and discriminated against him in violation of 42 U.S.C. § 1983 and the First, Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution and 42 U.S.C. §§ 3535(d), 3600

3

through 3620. The Court applied well-established principles of law in considering whether
Bond’s Complaint stated or could state arguable causes of action under the cited provisions,
concluding that Bond had not stated arguable claims for relief under 42 U.S.C. § 1983 and the
First, Fourth, Fifth, or Fourteenth Amendments to the United States Constitution. Because
amendment of the Complaint with respect to such claims would be futile those claims were
dismissed. However, Bond was permitted to amend his Complaint with respect to his claims
under 42 U.S.C. § 3404 and/or § 3417. There are not substantial grounds for a difference of
opinion regarding the questions of law regarding whether Bond stated or could state claims
under those provisions.
The Court also dismissed Bond’s claim under 42 U.S.C. § 3535(d) concluding
that the provision did not appear relevant to Bond’s concerns. While the Court did not locate
any decisions pertaining to that statute, the determination was straightforward and substantial
grounds for a difference of opinion regarding that question of law are unlikely. The Court
need not discuss the other § 1292(b) criteria because all of the statutory criteria must be
established before the Court can certify any such appeal. See Ahrenholz, 219 F.3d at 676.
Motion for Automatic Stay
Bond also filed a motion for an automatic stay of the proceedings requesting that
the Court direct the Milwaukee County Sheriff to suspend any actions to evict Bond from his
home.
Rule 62(a) provides for an automatic stay as follows:

4

Except as stated in this rule or as otherwise ordered by the court,
no execution may issue on a judgment, nor may proceedings be
taken to enforce it, until 14 days have passed after its entry. But
unless the court orders otherwise, the following are not stayed
after being entered, even if an appeal is taken:
(1) an interlocutory or final judgment in an action for an
injunction or a receivership; . . .
(Emphasis added.) Thus, by its terms Rule 62(a) excludes injunctive relief from the type of
actions where there is an automatic stay. See 11 Charles Alan Wright. Arthur R. Miller, &
Mary Kay Kane, Federal Practice and Procedure, § 2904 (2d ed. 1995).
Actions for injunctions are addressed by Rule 62(c) which provides in pertinent
part: “While an appeal is pending from an interlocutory order or final judgment that grants,
dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an
injunction on terms for bond or other terms that secure the opposing party’s rights.” See also
Fed. R. App. P. 8(a) (providing that, where a stay of an injunction pending appeal has been
denied by a district court, the request for a stay may be renewed in the appellate court).
A court’s decision whether to stay an injunction pending appeal is a
discretionary one, guided by consideration of the following factors:
(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will
be irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties' interested in the
proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The party seeking a stay has the burden of
proving that these factors warrant a stay. Id.
5

The Hilton standards generally mirror the factors that the Court considers in
deciding whether to issue a preliminary injunction, with an important exception; “[i]n the
context of a stay pending appeal, where the applicant’s arguments have already been evaluated
on the success scale, the applicant must make a stronger threshold showing of likelihood of
success to meet his burden.” In the Matter of Forty-Eight Insulations, Inc., 115 F.3d 1294,
1301 (7th Cir. 1997). Thus, to satisfy the first Hilton factor, the movant must “demonstrate
a substantial showing of likelihood of success, not merely the possibility of success[.]” Id.
If the movant makes that showing and a showing of irreparable harm in the absence of a stay,
then the Court considers all four Hilton factors using a sliding scale approach. Id. at 1300-01.
If the movant fails to make the requisite showing of likelihood of success, or irreparable harm,
or both, the analysis must end there and the stay must be denied. Id. at 1301.
The first consideration is Bond’s likelihood of success on the merits of his
interlocutory appeal. The Court applied the principles governing preliminary injunctions and
those regarding whether a party has stated an arguable claim for relief. The denial of Bond’s
request for injunctive relief rests largely on the Complaint’s failure to state a claim for relief.
In addition, the Court determined that the harms to Chase Home's interests if a preliminary
injunction were issued outweighed those claimed by Bond, and the public interest also
overwhelmingly favored Chase Home. Having revisited its prior rulings from the perspective
of consideration of those issues on appeal, the Court concludes that Bond has not established
that he is likely to prevail on the merits of his appeal. Therefore, there is no need to reach the

6

remaining three factors for determining entitlement to a stay. See id. (“However, if the
movant does not make the requisite showings on either [the likelihood of success or the
irreparable harm] factors, the court's inquiry into the balance of harms is unnecessary, and the
stay should be denied without further analysis.”).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Bond’s request for permission to file an interlocutory appeal is DENIED;
Bond’s motion for an automatic stay (ECF No. 14) is DENIED.
Dated at Milwaukee, Wisconsin this 16th day of November, 2012.
BY THE COURT
_______________________
Hon. Rudolph T. Randa
U.S. District Judge

7