PRATT v. THEISING, (S.D.Ind. 2002)

SARAH EVANS BARKER, United States District Judge

Appellant Mark Pratt has filed a Notice of Appeal of the Court's Summary Order and Judgment entered on March 26, 2002, by which this case was remanded to the Bankruptcy Court. On April 10, 2002, the Court ordered supplemental briefing on whether the issues presented for appeal were proper for certification under the standard embodied in 28 U.S.C. § 1292. For the reasons set out in detail below, Appellant's Motion to Certify Order for Appeal is DENIED.

1) § 1292(b) certification Motions for leave to appeal interlocutory orders are examined under the standards set forth in 28 U.S.C. § 1292(b), which provides in relevant part:

When 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.

Id. (emphasis added). Unless all these criteria are satisfied, the district court may not and should not certify its order for an immediate appeal under section 1292(b). Ahrenholz v. Board of Trustees of the University of Illinois, 219 F.3d 674, 675 (7th Cir. 2000). "The party moving for the § 1292(b) interlocutory appeal bears the burden of persuading the court that exceptional circumstances justify departing from the normal course of taking an appeal after entry of final judgment." Smith v. Ford Motor Co., 908 F. Supp. 590, 600 (N.D.Ind. 1995) (citations omitted). "It is not enough for the district court to certify that the order meets these standards; the Court of Appeals makes its own independent determination as well. Only when both courts agree does the interlocutory appeal go forward." Trans States Airlines v. Pratt Whitney Canada, Inc., 86 F.3d 725, 729 (7th Cir. 1996).

Appellant seeks § 1292(b) certification on the question whether Appellant is entitled to a trial by jury. Although this issue clearly embraces legal questions, specifically the nature of the claims asserted, it also embraces factual issues that make it inappropriate for § 1292(b) certification. In Ahrenholz v. Board of Trustees of the University of Illinois, 219 F.3d at 676, the court described a "question of law" as "a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine." Certification, the court explained, should be reserved for "pure questions of law," representing "abstract legal issue[s]." Id. at 676-77.

Here, Appellant indicates that he seeks merely a clarification or review of whether his claims merit a jury trial. Unfortunately for him, consideration of this issue by the Court of Appeals would necessarily involve determinations of other disputed factual and legal conclusions as to whether Appellant waived the right to jury trial in this matter. Such determinations would not be "something the court of appeals could decide quickly and cleanly without having to study the record," Ahrenholz, 219 F.3d at 677, and therefore are not a proper subject for certification to the Court of Appeals.

Moreover, certifying only the "pure question of law" regarding whether certain claims at issue include a right to jury trial would not serve ultimately to advance the litigation, because the waiver issues would remain unresolved. Therefore, because Appellant has failed to establish all the necessary elements under § 1292(b) to justify certification of our Order for immediate appeal, Appellant's Motion to Certify the Order as to the right to jury trial for interlocutory appeal under § 1292(b) is DENIED.

2) Collateral order doctrine In the alternative, Appellant seeks review of the Summary Order pursuant to the collateral order doctrine, which allows immediate appeal of decisions that are "conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." S.E.C. v. Van Waeyenberghe, 284 F.3d 812, 815 (7th Cir. 2002), citing Swint v. Chambers County Com'n, 514 U.S. 35, 42 (1995). The "narrow exception" to the finality doctrine created by the collateral order doctrine "is limited to trial orders `affecting rights that will be irretrievably lost in the absence of an immediate appeal.'" Cherry v. University of Wisconsin System Bd. of Regents, 265 F.3d 541, 546 (7th Cir. 2001), quoting In re Moens, 800 F.2d 173, 176 (7th Cir. 1986), quoting Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31 (1985).

Appellant contends that "[r]equiring Pratt and the other parties to fully litigate this matter before the Bankruptcy Court, knowing full well that there exists a reasonable chance that they may have to try this matter again if Pratt is successful on appeal, is enough to effectively render the District Court's decision unreviewable on appeal." Appellant's Brief in Support of Motion for Leave to Appeal at 12.

This assertion, lacking citation to any legal authority, does not comport with Seventh Circuit precedent on the question. "As a rule the denial of a jury trial could not qualify as a `collateral order.' It is reparable on appeal by reversal and a remand for a new trial, with a jury." First Nat'l Bank of Waukesha v. Warren, 796 F.2d 999, 1003 (7th Cir. 1986). See also In re Bowers-Siemon Chemicals Co., 123 B.R. 821, 824 (N.D.Ill. 1991). The potential costs of retrial are simply not the type of irreparable injury the collateral order doctrine seeks to remedy. Id. Accordingly, Appellant's request for leave to appeal the Court's ruling as to the availability of a jury trial should be DENIED.