United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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.
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.”).
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
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 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.
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
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.
Defendants cannot show each of the four required elements for
certification. An appeal at this juncture would serve only to
delay an 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.
IT IS ORDERED that the motion to amend and certify (Docket
#163) of the defendants County of Milwaukee and David A.