United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
Jonathan Lee Richardson filed a motion for certification of
interlocutory appeal (docket no. 43) regarding the
Court's order granting Defendant City of San Antonio,
Texas's motion to dismiss for failure to state a claim
(docket no. 26) and the Court's order granting Defendant
Gerald Lewis's motion to dismiss for failure to state a
claim (docket no. 27). For the reasons that follow,
Plaintiff's motion is denied.
filed suit on February 14, 2019, against multiple defendants
including Defendants Gerald Lewis (“Lewis”),
individually and in his official capacity as University of
Texas at San Antonio Chief of Police, and the City of San
Antonio, Texas (“City”), bringing multiple
federal and state law claims including unlawful arrest and
false imprisonment, intentional infliction of emotional
distress, and negligent hiring, supervision, training, and
retention. Docket no. 1-6. On May 31, 2019, the Court
dismissed with leave to amend the Plaintiff's claims
against Defendants Lewis and the City. Docket no. 21.
Plaintiff filed an amended complaint on June 21, 2019. Docket
no. 25. Defendants City and Lewis filed motions to dismiss
for failure to state a claim on June 28 and July 1, 2019,
respectively. Docket nos. 26, 27. The Court held a status
conference and hearing on all pending motions, including the
motions to dismiss, on August 1, 2019. As stated in open
court that same day the Court granted Defendants City and
Lewis's motions to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). Text Order of
August 1, 2019, granting docket nos. 26 and 27.
September 30, 2019, Plaintiff filed a motion for
certification for interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b). Docket no. 43. The question Plaintiff wants
to certify for appeal-although the Plaintiff does not make it
clear-is whether the Defendants are entitled to qualified
immunity. See Id. at 2 (indicating qualified
immunity is controlling question of law and its applicability
would materially advance resolution of litigation).
review is appropriate only under “exceptional”
circumstances. Caterpillar Inc. v. Lewis, 519 U.S.
61, 74 (1996); see Clark-Dietz & Assos.-Eng'rs,
Inc. v. Basic Const. Co., 702 F.2d 67, 69 (5th Cir.
1983) (describing interlocutory appeals as
“exceptional”). The decision to permit
interlocutory review rests within the district court's
sound discretion and is unappealable. In re Air Crash
Disaster, 821 F.2d 1147, 1167 (5th Cir. 1987).
1292(b) is not simply a vehicle to redetermine the
correctness of a district court's judgment. Ryan v.
Flowserve Corp. et al., 444 F.Supp.2d 718, 722 (N.D.
Tex. 2006). To merit interlocutory appeal, the moving party
must point to, “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[.]”
28 U.S.C. § 1292(b). All three factors must be met to
properly certify an issue for appeal. Clark-Dietz,
702 F.2d at 69. The district court necessarily relies on the
movant's persuasive argument to describe the precise
nature by which all three factors are met. Id. at
Court need only consider the second factor required for
certification of interlocutory appeal to deny Plaintiff's
motion. See Trevino v. RDL Energy Servs., LP, No.
4:14-CV-01936, 2017 WL 10153536, at *1 (S.D. Tex. Dec. 19,
2017) (“Every ground in § 1292(b) must be met in
order for the interlocutory appeal to be considered; these
are not factors to be weighed and balanced.”) (citing
Ahrenholz v. Bd. of Trustees of the Univ. of
Illinois, 219 F.3d 674, 676 (7th Cir. 2000)). Courts
have found a substantial ground for difference of opinion
occurs when, “a trial court rules in a manner which
appears contrary to the rulings of all Courts of Appeals
which have reached the issue, if the circuits are in dispute
on the question and the court of appeals of the circuit has
not spoken on the point[.]” Ryan, 444
F.Supp.2d at 723-24 (quoting 4 Am. Jur. 2d Appellate
Review § 128 (2005)). The Court's order does
not present a substantial ground for a difference of opinion
and the Plaintiff has failed to present any argument to the
contends a substantial ground for difference of opinion
exists because, “Defendants maintain that claims
against Defendants . . . are bar[r]ed by [q]ualif[ied]
immunity while [Plaintiff] has a differen[ce] of
opinion[.]” Docket no. 43. Plaintiff incorrectly
interprets the requirements for satisfying the
“substantial ground for a difference of opinion”
factor. The difference of opinion must stem between the
district court's order and the precedent of the Courts of
Appeals, not a difference of opinion between the parties in
dispute. See, e.g., Luckenbach Overseas Corp. v.
Usner, 413 F.3d 984 (5th Cir. 1969) (holding the
substantial ground for difference of opinion factor
appropriately satisfied because of uncertainty and confusion
in the applicable area of law due to a recent Supreme Court
ruling). Further, Plaintiff does not cite a single authority
indicating the Court has ruled contrary to Fifth Circuit or
other Courts of Appeals precedent regarding applicability of
qualified immunity. Docket no. 43. Even if counsel disagreed
on applicable precedent or contended the district court ruled
incorrectly, the contested issue would still not qualify as a
substantial disagreement. Ryan, 444 F.Supp.2d at
724. The law governing qualified immunity is well-established
in the Fifth Circuit. Reconsidering the issue in the present
instance would involve applying settled law to disputed
facts, which the Court declines to do on § 1292(b)
grounds. See Clark-Dietz, 702 F.2d at 69 (holding
“fact-review” issues inappropriate for §1292
review); Ryan, 444 F.Supp.2d at 722 (explaining
§ 1292 review should not require the Court of Appeals to
comb the record for disputed facts to resolve the issue).
aforementioned reasons, this Court DENIES Plaintiffs motion
for certification of interlocutory appeal (docket no. 43)
regarding the Court's order granting Defendants Gerald
Lewis and City of San ...