United States District Court, W.D. Texas, Waco Division
JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JANE DOE 5, JANE DOE 6, JANE DOE 7, JANE DOE 8, JANE DOE 9, and JANE DOE 10, Plaintiffs,
BAYLOR UNIVERSITY, Defendant.
PITMAN UNITED STATES DISTRICT JUDGE.
the Court in the above-entitled matter is Defendant Baylor
University's (“Defendant”) Motion to Certify
Order for Interlocutory Appeal. Having considered the filing
and responsive pleadings thereto, relevant law, and the case
file, the Court enters the following Order.
suit involves ten plaintiffs who allege they were sexually
assaulted by fellow students while attending Baylor
University. Plaintiffs seek to hold Baylor liable under Title
IX of the Education Amendments of 1972 (“Title
IX”). Title IX provides that “[n]o person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a). On March 7, 2017, the Court entered an Order
resolving several motions to dismiss. (Order, Dkt. 78).
Following the entry of that Order (“Order”), the
live claims in the above-entitled matter include (1) the
post-reporting claims of Does 1, 3, 4, 8, 9, and 10; and (2)
all Plaintiffs' heightened-risk claims.
filed the instant motion on March 24, 2017. (Mot. Certify
Appeal, Dkt. 84). The motion asks the Court, pursuant to 28
U.S.C. § 1292(b) (“Section 1292(b)”), to
certify its Order for interlocutory appeal. (Id. at
1-2). Baylor asserts that the Order “dramatically
expands both the scope of liability under Title IX and the
applicable limitations period” and “has
far-reaching implications for Baylor generally and for
schools across the circuit and the country.”
(Id. at 1). Plaintiffs oppose Defendant's
motion. (See Resp., Dkt. 85).
STANDARD OF REVIEW
of appeals “have jurisdiction of appeals from all final
decisions of the district courts of the United States.”
28 U.S.C. § 1291. Section 1292(b) provides a narrow
exception to this rule:
Where a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves 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, he shall so state in writing in such order. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from entry of the order: Provided,
however, That application for an appeal hereunder shall
not stay proceedings in the district court unless the
district judge or the Court of Appeals or a judge thereof
shall so order.
28 U.S.C. § 1292(b). In sum, after issuing an otherwise
nonappealable order, a district judge may certify the order
for interlocutory appeal when (1) a controlling question of
law is involved, (2) there is a substantial ground for
difference of opinion about the question of law, and (3)
immediate appeal will materially advance the ultimate
termination of the litigation. Rico v. Flores, 481
F.3d 234, 238 (5th Cir. 2007). All three of these criteria
must be met for an order to properly be certified for
interlocutory appeal. Clark-Dietz &
Assocs.-Eng'rs v. Basic Constr. Co., 702 F.2d 67, 69
(5th Cir. 1983).
review is reserved for “exceptional” cases, as
the basic structure of appellate jurisdiction disfavors
piecemeal appeals. Caterpillar Inc. v. Lewis, 519
U.S. 61, 74 (1996); Clark-Dietz, 702 F.2d at 69. The
decision to certify an interlocutory appeal pursuant to
Section 1292(b) is within the discretion of the trial court
and unappealable. In re Air Crash Disaster, 821 F.2d
1147, 1167 (5th Cir. 1987) (citing In re McClelland
Eng'rs, Inc., 742 F.2d 837, 839 (5th Cir. 1984),
cert denied, 469 U.S. 1229 (1985)).
examined the instant motion under the standard identified
above, the Court concludes Defendant has failed to meet its
burden with respect to the third criterion: whether immediate
appeal will materially advance the ultimate termination of
Court acknowledges that the availability of review under
Section 1292(b) is not limited to those situations in which
decision on an issue would result in a complete dismissal.
See Garner v. Wolfinbarger, 430 F.2d 1093, 1097 (5th
Cir. 1970). However, “[t]he Fifth Circuit has held that
certification is particularly inappropriate when a party has
claims remaining for adjudication by the finder of
fact.” In re L.L.P. & D. Marine, Inc., No.
Civ. A. 97-1668, 1998 WL 66100, at *2 (E.D. La. Feb. 13,
1998) (citing United States v. Bear Marine Servs.,
Inc., 696 F.2d 1117, 1120 (5th Cir. 1983); Spurlin
v. Gen. Motors Corp., 426 F.2d 294, 294-95 (5th Cir.
1970)). Here, an interlocutory appeal of the issues
identified by Defendant-even if successful-would not resolve
the claims of four plaintiffs. In contrast, allowing the
litigation to proceed could obviate Defendant's need for
an appeal. For instance, if (1) Plaintiffs'
heightened-risk claims were unable to survive a motion for
summary judgment or (2) a jury were to find Plaintiffs failed
to meet their burden as to those claims, the analysis of
heightened-risk claims in the Order would be moot.
interlocutory appeal would not eliminate the need for a
determination on the post-reporting claims of four
plaintiffs, the Court considers whether Baylor has shown that
interlocutory appeal of the heightened-risk issue would (1)
significantly narrow the scope of evidence; or (2) simplify
or shorten future analysis or trial. See, e.g.,
Releford v. City of Houston, 2016 WL 7051662, at *4
(S.D. Tex. Dec. 5, 2016) (“Although a favorable
appellate decision for the City on its proposed question may
narrow the scope of evidence or issues, it will not result in
automatic summary judgment for the City. The case could
continue to proceed to trial. Therefore the question . . .
would not promise to hasten the termination of
litigation.”); Coates v. Brazoria Cty., 919
F.Supp. 2d. 863, 868 (S.D. Tex. 2013) (“Because the
interlocutory appeal will not eliminate the need for trial on
the other claims, the [defendant] would have to show that an
appeal of [one] issue would simplify or shorten the
inevitable trial.”). Here, the remaining ...