Bach v. Milwaukee County Circuit Court et al

Filing 76

ORDER signed by Magistrate Judge Nancy Joseph on 7/18/2013 denying plaintiff's 75 Motion to Certify Interlocutory Appeal. (cc: all counsel, mailed to plaintiff via USPS) (djd)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARGARET BACH,
Plaintiff,
v.

Case No. 13-CV-370

MILWAUKEE COUNTY CIRCUIT COURT,
Judge Jane Carroll presiding,
MILWAUKEE COUNTY,
ELIZABETH RUTHMANSDORFER,
LIFE NAVIGATORS,
DISABILITY RIGHTS WISCONSIN, INC.,
DEWEY MARTIN,
MOERTL WILKINS & CAMPBELL S.C.,
DENICE MADER, LYNN WAGNER,
MAUREEN McGINNITY,
FOLEY & LARDNER LLP,
CHRISTINE GABOR, KATIE DOMER,
EASTER SEALS OF SOUTHEAST WISCONSIN, INC.,
KRISTA BUCHHOLTZ,
WILSON ELSER MOSKOWITZ EDELMEN & DICKER LLP,
GARY STARK,
MILWAUKEE COUNTY MENTAL HEALTH COMPLEX,
SCOTT McCARDELL, BRIDGES LLC,
JULLIAN GOGGANS, and
MILWAUKEE POLICE DEPARTMENT,
Defendants.

ORDER DENYING MOTION TO CERTIFY INTERLOCUTORY APPEAL

On July 16, 2013, the plaintiff, Margaret Bach, filed a “motion for an interlocutory order.”
(Docket # 75.) The Court construes this motion to be a motion to certify for interlocutory appeal its
July 10, 2013 order on Bach’s motion to void a state court order regarding transcripts. (Docket # 72.)

Petitions for interlocutory appeals are governed by 28 U.S. C. §1292. In particular, § 1292(b)
permits a district judge to certify a non-final order for immediate interlocutory appeal. Because
interlocutory appeals are an exception to the final judgment rule, their use should be limited to
“exceptional” cases in which an appellate decision “may obviate the need for protracted and
expensive litigation.” Fed. Deposit Ins. Corp v. First Nat. Bank of Waukesha, 604 F.Supp. 616, 620 (E.D.
Wis. 1985). To certify an issue for interlocutory appeal, the court must find that the order presents
“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.” 28 U.S.C. § 1292(b); see also Trans States Airlines v. Pratt & Whitney Canada, Inc., 86 F.3d
725, 729 (7th Cir. 1996). These “criteria are conjunctive, not disjunctive.” Ahrenholz v. Board of
Trustees of University of Illinois, 219 F.3d 674, 676 (7th Cir. 2000). Thus, “there must be a question of
law, it must be controlling, it must be contestable, and its resolution must promise to speed up the
litigation.” Id. at 675. It is within a district court’s discretion to allow—or disallow—an interlocutory
appeal from a non-final order. Swint v. Chambers County Com’n, 514 U.S. 35, 46 (1995) (holding that
Congress chose to confer on district courts first line discretion to allow interlocutory appeals).
It is evident from Bach’s motion that she believes this Court can serve as a reviewing court
for the state circuit courts. (See Docket # 75 at 4 (“No circuit court judge can prevent review of his
or her conduct and decisions by a higher court.”)). As was explained in the order on her motion for
transcripts, federal district and circuit courts are not courts of appeal for state courts. (See Docket #
72 at 2.). It was on this basis that this Court denied her motion to overturn the state court order
regarding transcripts.

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Turning to the criteria for certification, although the Court is sympathetic to Bach’s frustration
regarding transcripts she asserts that she has already paid for, her request for an interlocutory appeal
does not satisfy the requirements of § 1292(b). First, Bach has not shown that the question she seeks
to have certified is controlling for purposes of §1292(b). In order to be a “controlling” question of law,
the resolution of the issue must affect the course of litigation. United States v. Approximately 81,454
Cans of Baby Formula, 2008 WL 4058044, *1 (E.D.Wis. Aug. 26, 2008) (citing Sokaogon Gaming Enter.
Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 658 (7th Cir.1996)); Harrisonville Tel. Co. v. Ill.
Commerce Com'n, 472 F. Supp. 2d 1071, 1080 (S.D.Ill. 2006) (“A controlling question of law is a
threshold issue that seriously affects the way in which a court conducts a litigation, for example,
impacting whether or not the plaintiff has a claim for relief under a particular statute.”) A
“controlling question” can exist where resolution of the question will resolve the litigation in its
entirety, or where it will establish “whether a particular claim exists.” E.E.O.C. v. Maggies Paratransit
Corp., 351 F. Supp. 2d 51, 53 (E.D.N.Y. 2005). Here, even if the Seventh Circuit ruled in favor of
Bach and voided the state court’s order on the transcripts, such an order would not extinguish Bach’s
claims in the present action. As such, Bach does not present a controlling issue of law for
certification.
Next, Bach has not shown that the question presented by the July 10, 2013 order denying
the motion to void the state court’s transcript order is contestable, meaning it is not one “as to which
there is substantial ground for difference of opinion.” 28 U.S.C. § 1292(b). That federal courts are
courts of limited jurisdiction is well-established. Bach has not cited any authority for overturning or
voiding the state circuit court order on transcripts. That Bach asserts she needs the transcripts in a
matter pending in this district court does not give this court authority to bypass the state appellate

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court regarding a state circuit court order. Accordingly, the July 10, 2013 order does not present a
contestable question of law, as used in § 1292(b), warranting certification for interlocutory appeal.
Therefore, IT IS HEREBY ORDERED that the plaintiff’s motion for certification for
interlocutory appeal is DENIED.

Dated this 18th day of July, 2013, at Milwaukee, Wisconsin.

BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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