United States District Court, E.D. Wisconsin
ASHTON WHITAKER, a minor, by his mother and next friend, MELISSA WHITAKER, Plaintiffs,
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.
Whitaker, Plaintiff, represented by Alison Pennington,
Transgender Law Center.
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.
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
PEPPER, District Judge.
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.
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.
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.
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.
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
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)).
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.
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. Â§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 Â§ 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,
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 ...