United States District Court, N.D. Texas, Dallas Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
D. STICKNEY UNITED STATES MAGISTRATE JUDGE
case has been referred to the United States Magistrate Judge
for pretrial management. Before the Court is Plaintiffs
Motion for Certification of Final and Appealable Order and/or
for Permission for Immediate Appeal Pursuant to Federal Rule
of Civil Procedure ("Rule") 54(b) [ECF No. 271]
("Motion for Certification"). In the Motion for
Certification, Plaintiff seeks an order from the Court that
allows Plaintiff to "immediately file an appeal of all
dispositive orders and related discovery rulings issued (or
not issued) in this matter [.]" Mot. 1, ECF No. 271.
Plaintiff seeks relief under Rule 54(b) and 28 U.S.C. §
1292 ("Section 1292"). Mot. 1, ECF No. 271.
Defendants argue in their response that Plaintiffs request
for Rule 54 relief should be denied, because piecemeal
appeals (1) will not advance the orderly disposition of this
case; (2) will cause confusion; and (3) unnecessarily
increase costs. Resp. 1-2, ECF No. 273. In addition,
Defendants argue that Plaintiffs request for relief under
Section 1292(b) should also be denied, because there is no
substantial ground for difference of opinion regarding a
question of controlling law, and an immediate appeal will not
materially advance the ultimate termination of this case.
Resp. 2, ECF No. 273.
54(b) provides that:
When an action presents more than one claim for
relief-whether as a claim, counterclaim, crossclaim, or
third-party claim~or when multiple parties are involved, the
court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b), "A district court should grant
certification only when there exists some danger of hardship
or injustice through delay which would be alleviated by
immediate appeal; it should not be entered routinely as
courtesy to counsel." PYCA Indus., Inc. v. Harrison
Cnty. Waste Mgmt. Dist., 81 F.3d 1412, 1421 (5th Cir.
1996) (citing AnsamAssocs., Inc. v. Cola Petroleum,
Ltd., 760 F.2d 442, 445 (2d Cir. 1985)). Section 1292(b)
allows a district court to certify an interlocutory appeal
where: (1) there is a controlling question of law; (2) as to
which there is substantial ground for difference in opinion;
and (3) immediate appeal will materially advance the ultimate
termination of the case. See 28 U.S.C. §
1292(b); Swint v. Chambers Cnty. Comm'n, 514
U.S. 35, 46 (1995). District courts have "unfettered
discretion to deny certification, even when all three
[statutory criteria] are satisfied." Commil USA, LLC
v. Cisco Sys., Inc., No. 2:07-CV-341, 2011 WL 738871, at
*4 (E.D. Tex. Feb. 23, 2011) (internal quotation marks and
citations omitted), rev'd on other
grounds, 813 F.3d 994, 997 (5th Cir. 2015).
February 8, 2016, the District Court denied Plaintiff s
requests for relief under Rule 54(b) and Section 1292(b) on
the grounds that: (1) Plaintiff failed to explain what
hardship through delay would be avoided by an immediate
appeal; and (2) the statutory criteria for interlocutory
certification were not met, in particular, the District Court
was not persuaded that an immediate appeal would materially
advance the ultimate termination of the litigation. Mem. Op.
& Order 5-6, ECF No. 186. Plaintiffs requests for relief
under Rule 54(b) and Section 1292(b) in the present motion
should be denied on similar grounds. Plaintiff again fails to
explain how an immediate appeal will prevent hardship or
injustice or materially advance the ultimate termination of
this litigation. Defendants have been ordered by the Court to
brief the remaining counter-claims, so that the Court can
fully dispose of this case. See Order, ECF No. 277.
That matter will be ripe for adjudication on December 15,
2017, and Plaintiff can appeal the entire case after the
Court's ruling on that matter, rather than the piecemeal
appeal he now seeks. Therefore, the undersigned respectfully
recommends that the District Court DENY Plaintiffs Motion for
Certification [ECF No. 271].
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
United States District Clerk shall serve a true copy of these
findings, conclusions, and recommendation on the parties.
Pursuant to Title 28, United States Code, Section 636(b)(1),
any party who desires to object to these findings,
conclusions, and recommendation must serve and file written
objections within fourteen days after service of the
findings, conclusions, and recommendation. A party filing
objections must specifically identify those findings,
conclusions, or recommendation to which objections are being
made. The District Court need not consider frivolous,
conclusory, or general objections. A party's failure to
file such written objections to these proposed findings,
conclusions, and recommendation shall bar that party from a
de novo determination by the District Court. See
Thomas v. Am,474 U.S. 140, 150 (1985). Additionally,
any failure to file written objections to the proposed
findings, conclusions, and recommendation within fourteen
days after service shall bar the ...