Doe v. County of Milwaukee et al

Filing 171

ORDER signed by Judge J.P. Stadtmueller on 3/6/2017 DENYING 163 Motion to Amend/Correct and to Certify for Interlocutory Review by Defendants County of Milwaukee and David A. Clarke, Jr. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JANE DOE,
Plaintiff,
v.
COUNTY OF MILWAUKEE,
DAVID A. CLARKE, JR.,
XAVIER D. THICKLEN, and
JOHN/JANE DOE,

Case No. 14-CV-200-JPS

ORDER

Defendants.
On January 27, 2017, the defendants County of Milwaukee and David
A. Clarke, Jr. (“Defendants”) filed a motion to certify this matter for
interlocutory appeal. (Docket #163). Specifically, they request that the Court
amend its December 1, 2016 order on summary judgment to certify the
following question: “whether Defendant Xavier D. Thicklen’s alleged sexual
contact with Plaintiff was outside the scope of his employment with
Milwaukee County as a matter of law.” Id. Plaintiff opposes the motion.
Defendants’ motion seeks certification pursuant to 28 U.S.C. § 1292.
To warrant certification, the Seventh Circuit has explained that the statute has
four mandatory criteria: “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.” Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 675 (7th
Cir. 2000); see 28 U.S.C. § 1292(b). Interlocutory appeals are generally
disfavored because they are an exception to the final judgment rule, they
interrupt the progress of a case and prolong its disposition, and an avalanche
of interlocutory appeals would result if every procedural ruling was subject
to appellate review. See id. at 676 (to improperly certify a matter for appeal
“is merely to waste our time and delay the litigation in the district court, since

the proceeding in that court normally grinds to a halt as soon as the judge
certifies an order in the case for an immediate appeal.”); Wingerter v. Chester
Quarry Co., 185 F.3d 657, 669 (7th Cir. 1999). Finally, the Court notes that
certification is a matter of discretion. 28 U.S.C. § 1292(b) (“When a district
judge, in making in a civil action an order not otherwise appealable under
this section, shall be of the opinion [that certification is appropriate], he shall
so state in writing in such order.”).
Defendants’ motion must be denied for two primary reasons. First, the
question Defendants posit is not one of law. The Ahrenholz court, cited by
Defendants, addressed this very issue:
Formally, an appeal from the grant or denial of
summary judgment presents a question of law (namely
whether the opponent of the motion has raised a genuine issue
of material fact), which if dispositive is controlling; and often
there is room for a difference of opinion. So it might seem that
the statutory criteria for an immediate appeal would be
satisfied in every case in which summary judgment was denied
on a nonobvious ground. But that cannot be right. Section
1292(b) was not intended to make denials of summary
judgment routinely appealable, . . . which is the implication of
the district court’s certification and of the defendants’ petition
in this court. A denial of summary judgment is a paradigmatic
example of an interlocutory order that normally is not
appealable.
We think “question of law” as used in section 1292(b)
has reference to a question of the meaning of a statutory or
constitutional provision, regulation, or common law doctrine
rather than to whether the party opposing summary judgment
had raised a genuine issue of material fact. . . . We think [the
drafters of Section 1292(b)] used “question of law” in much the
same way a lay person might, as referring to a “pure” question
of law rather than merely to an issue that might be free from a
factual contest. The idea was that if a case turned on a pure
question of law, something the court of appeals could decide
quickly and cleanly without having to study the record, the
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court should be enabled to do so without having to wait till the
end of the case. . . . But to decide whether summary judgment
was properly granted requires hunting through the record
compiled in the summary judgment proceeding to see whether
there may be a genuine issue of material fact lurking there[.]
Ahrenholz, 219 F.3d at 676-77. The court concluded by imploring judges to
“remember that ‘question of law’ means an abstract legal issue rather than an
issue of whether summary judgment should be granted.” Id. at 677.
On summary judgment, the Court found that under Wisconsin law,
Plaintiff had raised issues of material fact on the scope issue. (Docket #157 at
25-32). Neither the parties nor the Court differed on what Wisconsin law is on
the issue, namely that the Restatement factors controlled as interpreted by
Wisconsin courts. Id. at 25-27. Rather, the parties disagreed on the application
of those factors to the facts at hand, and cited various opinions from
Wisconsin and this District doing the same. Id. at 27-29. On appeal, the Court
of Appeals would address this issue de novo, reviewing the evidence
presented to arrive at its own conclusion about the proper application of
Wisconsin law to the facts. This scenario is precisely what Ahrenholz
determined to be improper for certification.
Second, an appeal would not advance this litigation. This matter is set
for trial on June 5, 2017. As the Court noted in a recent order, “[t]his matter
is now almost three years old, and will be more than that by the time of trial.
Further, the matter will have been assigned to this branch of the Court for ten
months by the current trial date.” (Docket #166 at 1). An appeal at this late
stage would likely postpone the trial by no less than one year, grinding the
case to a halt rather than prodding it along.
In sum, Defendants cannot show each of the four required elements
for certification. An appeal at this juncture would serve only to delay an
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already long-delayed resolution to this case. Defendants’ complaints with the
Court’s summary judgment ruling must be raised after trial concludes in June
of this year.
Accordingly,
IT IS ORDERED that the motion to amend and certify (Docket #163)
of the defendants County of Milwaukee and David A. Clarke, Jr. be and the
same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 6th day of March, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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