United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PLAINTIFFS' EMERGENCY
MOTION FOR A CERTIFICATE OF APPEALABILITY (Dkt. 28)
MARK
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
This
matter is now before the Court on Plaintiffs John Lauve and
Robert Davis's emergency motion for a certificate of
appealability (Dkt. 28). This Court issued an order on
November 13, 2017 denying Plaintiffs' emergency motion
for a writ of mandamus and declaratory judgment with respect
to counts VI and VII of the complaint (Dkt. 21). Plaintiffs
now seek to immediately appeal the Court's ruling to the
Sixth Circuit. For the reasons that follow, the Court denies
Plaintiffs' motion.
I.
BACKGROUND
Plaintiffs
filed their original complaint on August 20, 2017, alleging
that their rights were violated by Defendants Janice Winfrey,
the Detroit City Clerk; Daniel Baxter, the director of
Elections for the City of Detroit Election Commission; and
the Detroit City Council when referendum petitions submitted
by Plaintiffs were rejected. In addition to their claims for
violations of procedural due process and equal protection
pursuant to 42 U.S.C. § 1983, Plaintiffs requested that
this Court issue a writ of mandamus compelling Defendant
Janice Winfrey to canvass the referendum petitions (Count VI)
and issue a judgment declaring that 2017 Ordinance No. 19-17
- the subject of Plaintiffs' referendum petitions - is
suspended until Defendant Winfrey makes a final report
regarding the sufficiency of Plaintiffs' referendum
petitions (Count VII). See Compl. (Dkt. 1). The next
day, Plaintiffs filed an emergency motion for a writ of
mandamus and declaratory judgment with respect to Counts VI
and VII of their complaint (Dkt. 5).
This
Court entered an order denying Plaintiffs' emergency
motion, but expressly stated that it was not dismissing
Counts VI and VII because “the parties [had] not
briefed the merits of these counts with the focus of whether
they should be dismissed[.]” Lauve v. Winfrey,
No. 17-12726, 2017 WL 5247897, at *4 (E.D. Mich. Nov. 13,
2017). Plaintiffs filed the instant emergency motion nearly a
month later, asking that this Court certify its order as a
final judgment so that Plaintiffs may appeal the Court's
decision to the Sixth Circuit.
II.
ANALYSIS
The
Federal Rules of Civil Procedure provide that when an action
presents more than one claim for relief,
any order or other decision . . . that adjudicates fewer than
all of 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). However, 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
there is no just reason for delay.” Id.
The
first step in a Rule 54(b) certification is the entry of a
final judgment, which is satisfied “where some decision
made by the district court ultimately disposes of one or more
but fewer than all of the claims or parties in a
multi-claim/multi-party action.” General
Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022,
1026-1027 (6th Cir. 1994). The “final judgment”
must be “‘final' in the sense that it is
‘an ultimate disposition of an individual claim entered
in the course of a multiple claims action.'”
Id. at 1027 (quoting Curtiss-Wright Corp. v.
General Elec. Co., 446 U.S. 1, 7 (1980)). Further, when
describing what constitutes a “claim” for
purposes of Rule 54(b), the Sixth Circuit has explained that
“even though different theories of liability may have
been asserted, the concept of a claim under Rule 54(b)
denotes the aggregate of operative facts which give rise to a
right enforceable in the courts.” Id. at 1028
(quoting McIntrye v. First Nat'l Bank of
Cincinnati, 585 F.2d 190, 191 (6th Cir. 1978)).
This
Court has been clear that it did not dismiss Counts VI and
VII of Plaintiffs' complaint even though it denied their
motion. Accordingly, there has been no ultimate disposition
of these counts. Additionally, these counts are not
“claims, ” for purposes of Rule 54(b), separate
from the other counts that Plaintiffs allege. Many, if not
all, [1] of the counts alleged by Plaintiff arise
“out of the same aggregate of operate facts, ”
Lowery v. Fed. Express Corp., 426 F.3d 817, 821 (6th
Cir. 2005); that is, Defendants' rejection of referendum
petitions submitted by Plaintiffs in August 2017. “A
district court's rejection of one of several requests for
relief arising from a single wrong does not establish
appellate jurisdiction under Rule 54(b).”
GenCorp, 23 F.3d at 1028. Therefore, the requirement
of “an ultimate disposition of an individual
claim” has not been met.
Even
assuming that the first step in Rule 54(b) certification had
been met, the Court would then need to determine that there
was no just reason to delay the appeal of Counts VI and VII.
Such a determination “requires the district court to
balance the needs of the parties against the interests of
efficient case management.” GenCorp, 23 F.3d
at 1027. The Sixth Circuit has articulated the following
non-exhaustive list of factors that the district court should
consider:
(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the need for
review might or might not be mooted by future developments in
the district court; (3) the possibility that the reviewing
court might be obliged to consider the same issue a second
time; (4) the presence or absence of a claim or counterclaim
which could result in set-off against the judgment sought to
be made final; (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of
trial, frivolity of competing claims, expense and the like.
Id. at 1030 (quoting Corrosioneering, Inc. v.
Thyssen Envt'l Sys., Inc., 807 F.2d 1279, 1283 (6th
...