United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiffs MB Realty Group,
Inc. and Matt Beckham's Motion for Entry of Judgment or,
in the alternative, to Certify Order for Interlocutory Appeal
and to Stay Proceedings Pending Appeal (Doc. No. 130). For
the reasons stated below, Plaintiffs' Motion is DENIED.
Court held a hearing on April 10, 2019 on Defendants Gaston
County Board of Education, Gaston County, Carstarphen Family
Foundation, The Stowe Foundation, Inc., Catherine Roberts,
and Tracy Philbeck's motions for summary judgment. After
reviewing the briefs, record, and hearing arguments from
counsel, the Court issued an Oral Order granting summary
judgment for Defendants Gaston County Board of Education,
Gaston County, Catherine Roberts, and Tracy Philbeck. The
case is scheduled to proceed to trial for the May 6 trial
term. Plaintiffs and Defendants Carstarphen Family Foundation
and The Stowe Foundation filed a Consent Motion to Stay
Proceedings (Doc. No. 129), which this Court denied (Doc. No.
134). Plaintiffs now move pursuant to Fed.R.Civ.P. 54(b) and
28 U.S.C. § 1292(b) for the Court to enter final
judgment or, in the alternative, certify its Order for
Fourth Circuit Court of Appeals may exercise jurisdiction
only over final orders and certain interlocutory and
collateral orders. Smith v. Miro, 23 Fed.Appx. 124.
125 (4th Cir. 2001) (citing 28 U.S.C. §§ 1291, 1292
and Fed.R.Civ.P. 54(b)). Thus, Plaintiff moves the Court to
certify the April 10, 2019 Oral Order granting summary
judgment immunity to Gaston County and Gaston County Board of
Education as an interlocutory order pursuant to §
1292(b) or as final order pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure.
Certification under § 1292(b)
to 28 U.S.C. § 1292(b), a district court may certify an
order for interlocutory appeal if the district court
determines 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 . . . .” 28 U.S.C. § 1292(b). However,
the Fourth Circuit has cautioned that § 1292(b) should
be used only “sparingly” and that “its
requirements must be strictly construed.” Myles v.
Laffitte, 881 F.2d 125, 127 (4th Cir. 1989); see
also City of Charleston v. Hotels.Com, LP, 586 F.Supp.2d
538, 542 (D.S.C. 2008) (clarifying that “certification
of an interlocutory appeal should generally be limited to
extraordinary cases where significant effort and expense
would be spared by appellate review prior to the entry of
final judgment”). The movant bears the burden of
demonstrating that the extraordinary relief of certification
under § 1292(b) is warranted. See State of N.C. ex
rel. Howes v. W.R. Peele, Sr. Trust, 889 F.Supp. 849,
853 (E.D. N.C. 1995).
Plaintiffs have failed to show that the Court's Order
creates a substantial difference of opinion. “An issue
presents a substantial ground for a difference of opinion if
courts, as opposed to parties, disagree on a controlling
legal issue.” Lynn v. Monarch Recovery Mgmt.
Inc., 953 F.Supp.2d 612, 624 (D. Md. 2013) (emphasis in
original). Here, Plaintiffs have offered no argument of
substantial difference of opinion. Thus, the Court finds that
Plaintiff has failed to show that there is a substantial
difference in opinion which would warrant certification of
the Court's Order granting Gaston County and the Gaston
County Board of Education summary judgment. Furthermore,
Plaintiffs have failed to show that an appeal of the
Court's Oral Order would materially advance the
disposition of this litigation. Rather, Plaintiffs merely
argue that without an immediate appeal, Plaintiffs could face
the risk of inconsistent verdicts. For these reasons, the
Court finds that Plaintiffs have failed to demonstrate that
certification of the Court's Oral Order is warranted
under 28 U.S.C. § 1292(b).
Certification under Fed.R.Civ.P. 54(b)
Rule 54(b) of the Federal Rules of Civil Procedure,
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
Fed. R. Civ. P. 54(b) (emphasis added). Certification of an
order under Rule 54(b) requires two steps. First, the court
must determine whether the judgment is “final, ”
that is, whether the order constitutes “an ultimate
disposition of an individual claim entered in the course of a
multiple claims action.” Braswell Shipyards, Inc.
v. Beazer East, Inc., 2 F.3d 1331, 1335 (4th Cir. 1993)
(citation and internal quotation marks omitted). Second, the
court must determine whether there is “no just reason
for the delay” in the entry of judgment. See
id. The movant bears burden of establishing that Rule
54(b) certification is warranted. Id at 1335.
However, it is ultimately within the court's discretion
“to determine the appropriate time when each final
decision in a multiple claims action is ready for
appeal.” Curtiss-Wright Corp. v. Gen. Elec.
Co., 446 U.S. 1, 8 (1980) (citation and internal
quotation mark omitted). The court's discretion should be
exercised “in the interest of sound judicial
administration.” Id (citation omitted). Here,
the Court finds that the resolution of the issue that
Plaintiffs seek to appeal does not advance the termination of
the litigation against those who remain in the action still
pending. However, the Court would ...