United States District Court, S.D. Ohio, Western Division
ORDER GRANTING MOTION TO CERTIFY INTERLOCUTORY
J. Dlott United States District Judge
matter is before the Court on Defendant OneBeacon Insurance
Company's Motion to Certify Interlocutory Appeal (Doc.
184). OneBeacon seeks the Court to certify the October 2,
2019 Order Denying [Second] Motion to Dismiss, but Staying
the Proceedings (Doc. 183) for immediate, interlocutory
appeal pursuant to 28 U.S.C. § 1292(b). Plaintiff The
William Powell Company disputes that October 2, 2019 Order is
appropriate for interlocutory appeal. For the reasons that
follow, the Court will certify the interlocutory appeal.
THE OCTOBER 2, 2019 ORDER
October 2, 2019 Order, the Court denied OneBeacon's
request to dismiss this action on the basis of claim
preclusion in light of judgment being reached in the State
Court Action, William Powell Company v. OneBeacon
Insurance Company, No. A1109350 (Hamilton Cty., Ohio
C.P.). The Court noted Powell had conceded that the first two
elements of the claim preclusion test-(1) a prior, valid
decision on the merits in the first action and (2) a second
action between the same parties-were satisfied. (Doc. 183 at
PageID 4584-4585.) Further, the Court stated that it was
likely that the latter two elements of the claim preclusion
test-(3) claims in the second action could have been asserted
in the first action and (4) claims arise from the same
transaction or occurrence-were satisfied as well.
(Id.) Nonetheless, the Court held that the
Restatement of Law 2d Judgments § 26(f) exception to
claim preclusion applied because the policies favoring
preclusion were overcome for an extraordinary reason given
the special procedural circumstances of this case.
(Id. at PageID 4585-4586.)
concluding that claim preclusion was not appropriate, the
Court stayed the case pursuant to Colorado River
abstention because the State Court Action and the Federal
Court Action had become parallel proceedings. (Id.
at PageID 4587.) The Court concluded that it would examine
whether the claims in this Federal Court Action were
precluded by the doctrine of issue preclusion at the
conclusion of State Court Action, including appeals and any
remand proceedings. (Id. at PageID 4588.)
STANDARD FOR INTERLOCUTORY APPEALS
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, [s]he shall so state in writing in such
order.” 28 U.S.C. § 1292(b). Therefore, courts
have discretion to permit interlocutory appeals when the
following conditions are satisfied: “(1) the order
involves a controlling question of law, (2) a substantial
ground for difference of opinion exists regarding the
correctness of the decision, and (3) an immediate appeal may
materially advance the ultimate termination of the
litigation.” Sheet Metal Empl'rs Indus. v.
Absolut Balancing Co., 830 F.3d 358, 361 (6th Cir. 2016)
(quoting In re City of Memphis, 293 F.3d 345, 350
(6th Cir. 2002)). Courts also have required that motions
seeking certification be filed within a reasonable time after
the order sought to be appealed. See Ahrenholz v. Bd. of
Trustees of Univ. of Ill., 219 F.3d 674, 675 (7th Cir.
2000) (“There is also a nonstatutory requirement: the
petition must be filed in the district court within a
reasonable time after the order sought to be
appealed.”); Sloan v. Borgwarner, Inc., No.
09-cv-10918, 2014 WL 12724217, at *1 (E.D. Mich. May 28,
2014) (stating that a reasonableness standard applies);
McKinstry v. Sergent, No. 11-133, 2012 WL 3731304,
at *3 (E.D. Ky. Aug. 28, 2012) (quoting Ahrenholz).
moves the Court to certify the October 2, 2019 Order for
interlocutory appeal so it can challenge the Court's
refusal to apply claim preclusion to bar Powell's claims.
Powell objects to certification on only two grounds: (1)
there is not a controlling issue of law appropriate for
interlocutory appeal and (2) OneBeacon did not move for
certification within a reasonable time. (Doc. 185 at
PageID 4603.) The Court will begin with the controlling issue
of law factor.
issue of law is controlling “if reversal of the
district court's order would terminate the action”
or if it “could materially affect the outcome of the
case.” U.S. ex rel. Elliot v. Brinkman Group Ltd.,
LLC, 845 F.Supp.2d 858, 865 (S.D. Ohio 2012) (citations
omitted). Claim preclusion is a controlling issue of law
under this standard because this Federal Court Action would
end if the Sixth Circuit determined that claim preclusion
applied. OneBeacon argues, nonetheless, that claim preclusion
is not a pure, abstract question of law appropriate for
interlocutory appeal because it involves delving into the
procedural and factual records of both the State Court Action
and this Federal Court Action. See, e.g.,
Smart & Assocs., LLC v. Indep. Liquor (NZ) Ltd.,
No. 3:10-CV-614, 2017 WL 4969354, at *3 (W.D. Ky. Sept. 26,
2017) (stating that interlocutory appeals should be limited
to abstract questions of law); DRFP, LLC v. Republica
Bolivariana de Venezuela, 945 F.Supp.2d 890, 918 (S.D.
Ohio 2013) (stating that interlocutory appeals are limited to
pure questions of law that do not require delving beyond the
surface of the record).
the Sixth Circuit and district courts repeatedly have
certified claim preclusion decisions for interlocutory
appeal. See, e.g., Bronson v. Bd. of
Educ. of City Sch. Dist. of City of Cincinnati, 512 F.2d
718, 719 (6th Cir. 1975); Merritt-Ruth v. Latta, No.
14-cv-12858, 2015 WL 4756612, at *3 (E.D. Mich. Aug. 11,
2015) (finding res judicata to be a controlling
issue of law); Wayne Cty. Hosp., Inc. v.
Jakobson, Civil No. 9-0044, 2011 WL 4591949, at *5-6
(E.D. Ky. Sept. 29, 2011) (certifying a decision on claim
preclusion for interlocutory appeal where only privity of the
parties was at issue); Bryan v. Aston, No. C
75-0350, 1976 WL 828, at *7 (W.D. Ky. 1976) (certifying
appeal of decision holding res judicata
inapplicable); but see In re Pilch, No. SL-00-04225,
2007 WL 1686308, at *4 (W.D. Mich. June 8, 2007) (refusing to
certify an appeal of a claim preclusion decision because the
issue involved the application of law to the facts). The
Court holds that the controlling law factor of § 1292(b)
is satisfied here based on the authority of Bronson
and its progeny.
the Court will examine Powell's contention that
OneBeacon's Motion is untimely. Section 1292(b) does not
contain a filing deadline, but as stated above, courts have
imposed a reasonableness standard. See Ahrenholz,
219 F.3d at 675; Sloan, 2014 WL 12724217, at *1;
McKinstry, 2012 WL 3731304, at *3. OneBeacon filed
its Motion on November 8, 2019, thirty-seven days after the
Court issued the October 2, 2019 Order. While this is longer
than the twenty-eight-day period for filing motions to amend
a judgment pursuant to Federal Rule of Civil Procedure 59(e)
or the thirty-day period for filing a notice of appeal
pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A),
it is not unreasonable in the circumstances of this case.
Thirty-seven days closer to the twenty-eight-day period found
to be reasonable in McKinstry v. Sergent, No.
11-133, 2012 WL 3731304, at *3-4 (E.D. Ky. Aug. 28, 2012),
than it is to the sixty-day period found to be unreasonable
in Eagan v. CSX Transp., Inc., 294 F.Supp.2d 911,
914 (E.D. Mich. 2003). Moreover, this case is stayed during
the pendency of the State Court Action. It is likely to
remain stayed for longer than the length of time it will take
the Sixth Circuit to rule on the interlocutory appeal.
foregoing reasons, Defendant OneBeacon Insurance
Company's Motion to Certify ...