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Whitaker v. Kenosha Unified School District No. 1 Board of Education

United States District Court, E.D. Wisconsin

September 25, 2016

ASHTON WHITAKER, a minor, by his mother and next friend, MELISSA WHITAKER, Plaintiffs,
v.
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION, and SUE SAVAGLIO-JARVIS, in her official capacity as Superintendent of the Kenosha Unified School District No. 1, Defendants.

          Ashton Whitaker, Plaintiff, represented by Alison Pennington, Transgender Law Center.

          Ashton Whitaker, Plaintiff, represented by Ilona Turner, Transgender Law Center, Michael G. Allen, Relman Dane & Colfax PLLC, Robert Theine Pledl, Pledl & Cohn SC, Sasha J. Buchert, Transgender Law Center, Shawn Thomas Meerkamper, Transgender Law Center & Joseph J. Wardenski, Relman Dane & Colfax PLLC.

          Kenosha Unified School District No 1 Board of Education, Defendant, represented by Aaron J. Graf, Mallery & Zimmerman SC, Jonathan E. Sacks, Mallery & Zimmerman S.C. & Ronald S. Stadler, Mallery & Zimmerman SC.

          Sue Savaglio-Jarvis, Defendant, represented by Aaron J. Graf, Mallery & Zimmerman SC, Jonathan E. Sacks, Mallery & Zimmerman S.C. & Ronald S. Stadler, Mallery & Zimmerman SC.

          ORDER GRANTING PLAINTIFFS' CIVIL L.R. 7(h) EXPEDITED NON-DISPOSITIVE MOTION TO RECONSIDER CERTIFICATION FOR INTERLOCUTORY APPEAL OF ORDER DENYING MOTION TO DISMISS (DKT. NO. 30), AND VACATING CERTIFICATION

          PAMELA PEPPER, District Judge.

         On September 19, 2016, the court issued an oral ruling denying the defendants' Rule 12(b)(6) motion to dismiss. Dkt. No. 28. At the end of the hearing, the parties briefly discussed scheduling oral argument on the plaintiffs' motion for a preliminary injunction, and settled on September 20, 2016 at 1:00 p.m. Id. at 9.

         At the conclusion of the September 20, 2016 hearing on the motion for preliminary injunction, counsel for the defendant told the court that he would be submitting a proposed order memorializing the court's denial of the defendants' motion to dismiss. He told the court that he would be including in that proposed order language to the effect that the court's order involving a controlling question of law upon which there was substantial difference of opinion, stating that the defendants would "need" that language if they decided to file an interlocutory appeal. The court did not ask counsel for the defendants to argue in support of this request; it simply stated, "okay." Nor did it give the plaintiffs the opportunity to argue on the question of whether the court should include that language in the order of dismissal.

         The defendants submitted the proposed order on September 20, 2016 at 5:28 p.m. (two and a half hours after the conclusion of the preliminary injunction hearing). Dkt. No. 27. After making some edits, the court issued the order at 11:07 a.m. the following day (September 21, 2016); the court's order included the defendants' proposed language: "The court concludes that the reasoning supporting this decision, and the decision itself, involve 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." Dkt. No. 29 at 2.

         The plaintiffs then filed the current motion, pursuant to Local Rule 7(h), asking the court to reconsider its inclusion of that sentence in the order denying the motion to dismiss. Dkt. No. 30. They make this request pursuant to Fed.R.Civ.P. 60, "Relief From a Judgment or Order." The plaintiffs argue that the defendants have not provided argument that would justify the court's certifying the decision for interlocutory appeal; that such appeals are unusual, and not favored in the Seventh Circuit; and that because the court denied the motion to dismiss on several grounds, interlocutory appeal on one unsettled issue of law would not serve to advance the litigation as a whole. Id.

         Local Rule 7(h) for the Eastern District allows a party to seek non-dispositive relief on an expedited basis by designating the motion under that rule. The rule allows the court to schedule a hearing, or to "decide the motion without a hearing."

         Fed. R. Civ. P. 60 allows a court to relieve a party from an order if one of a list of grounds exists. Those grounds include mistake, inadvertence, surprise, or excusable neglect (Rule 60(b)(1)); newly discovered evidence (Rule 60(b)(2)); fraud (Rule 60(b)(3)); the fact that the judgment from which the movant seeks relief is void (Rule 60(b)(4)) or has been satisfied (Rule 60(b)(5)); or "any other reason that justifies relief, " (Rule 60(b)(6)).

         The court finds that under the circumstances the plaintiffs describe (which are supported by the record), relief is justified under Rule 60(b)(6), "any other reason that justifies relief." The plaintiffs correctly characterize the series of events which led to the court including the interlocutory appeal language in the order denying the motion to dismiss. Defense counsel stated that he would submit a proposed order containing the language, but made no legal or factual argument in support of certification. The court did not ask defense counsel to provide argument in support of certification, nor did it ask the plaintiffs to respond. It simply included the language in the order, without input from either party. The court erred in failing to solicit argument on this issue.

         "As a general rule, the district court must issue a final order before an appellate court has jurisdiction to entertain an appeal." Abelesz v. Erste Group Bank AG, 695 F.3d 655, 658 (7th Cir. 2012). See also 28 U.S.C. §1291 ("The courts of appeals... shall have jurisdiction of appeals from all final decisions of the district courts of the United States....") (emphasis added). "A party generally may not take an appeal under § 1291 until there has been a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Van Cauwenberghe v. Baird, 486 U.S. 517, 521 (1988). Generally speaking, "[a] district court's denial of a motion to dismiss is not a final decision." Cherry v. University of Wisconsin System Bd. Of Regents, 265 F.3d 541, 546 (7th Cir. 2001). This is because when the district court denies the motion to dismiss, the disputed issues remain pending before the court, see United States v. Kashamu, 656 F.3d 679, 681 (7th Cir. 2011), cert. den., Kashamu v. United States, 132 S.Ct. 1046 (2012), and thus the order of denial does not "end the litigation on its merits, Van Cauwenberghe, 486 U.S. at 522. "So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

         There is a mechanism, however, which allows a party to seek review of a non-final order. Section 1292 of Title 28 allows a district court, under certain circumstances, to certify an order for ...


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