United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on consideration of Plaintiff
Willie Smiley's Motion to Certify July 17, 2019 Order for
Interlocutory Appeal (Doc. # 39), filed on August 12, 2019.
Defendant Costco Wholesale Corporation filed a response in
opposition on August 26, 2019. (Doc. # 40). For the reasons
that follow, the Motion is denied.
initiated this action on September 6, 2018. (Doc. # 1).
Costco removed the case to this Court on the basis of federal
question jurisdiction on October 1, 2018. (Id. at
2). Smiley then filed his Amended Complaint on December 17,
2018. (Doc. # 20). The Amended Complaint asserts claims under
the Florida Civil Rights Act (FRCA), Title VII, and Section
1981 for disparate treatment and failure to promote, as well
as asserting a retaliation claim under the FCRA.
15, 2019, Costco filed a motion for summary judgment. (Doc. #
29). Costco argued that there were no genuine issues of
material fact under the FRCA, Title VII, and Section 1981 for
disparate treatment and failure to promote, or for
retaliation under the FRCA. (Id. at 16-23). Smiley
responded to the motion for summary judgment (Doc. # 31), and
Costco replied. (Doc. # 32).
17, 2019, the Court granted in part and denied in part the
motion for summary judgment. (Doc. # 33). Summary judgment
was denied for Smiley's failure to promote claim based on
the forklift cross-training position. (Id. at 16).
Summary judgment was granted on Smiley's failure to
promote claim based on the produce supervisor position and
all abandoned claims, including Smiley's claims
“related to the seasonal front-end supervisor position
and the membership supervisor position.” (Id.
at 14, 24). The Court also granted summary judgment on
Smiley's retaliation claim, holding that Smiley had not
shown a genuine issue of material fact as to pretext.
(Id. at 22-24). Thus, only Smiley's failure to
promote claim based on the forklift cross-training position
survived summary judgment and the case is scheduled to go to
trial on that claim in October of 2019. (Id. at 25;
Doc. # 11).
now seeks certification pursuant to 28 U.S.C. § 1292(b)
to file an interlocutory appeal of the Court's Order
granting in part and denying in part the motion for summary
judgment. (Doc. # 39). Specifically, Smiley is requesting the
Court allow an interlocutory appeal of the Order to the
extent it granted summary judgment on Count IV, Smiley's
retaliation claim. (Id. at 2). Costco has responded
(Doc. # 40), and the Motion is ripe for review.
evaluating whether a district court's order is final and
appealable, we look to the substance of the order.”
Young v. Prudential Ins. Co. of Am., 671 F.3d 1213,
1215 (11th Cir. 2012). A district court order granting
partial summary judgment is not a final order subject to
appellate review under 28 U.S.C. § 1291. Winfield v.
St. Joe Paper Co., 663 F.2d 1031, 1032 (11th Cir. 1981).
an interlocutory appeal of a non-final, otherwise
non-appealable order is permitted when a district judge
determines that the “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.
this Court were to grant a Section 1292(b) certification
concerning its Order granting partial summary judgment, the
Eleventh Circuit would be under no obligation to consider an
appeal of the Order. See McFarlin v. Conseco
Services, LLC, 381 F.3d 1251, 1259 (11th Cir. 2004).
(“[T]he court of appeals has discretion to turn down a
[Section] 1292(b) appeal. And we will sometimes do so. The
proper division of labor between the district courts and the
court of appeals and the efficiency of judicial resolution of
cases are protected by the final judgment rule, and are
threatened by too expansive use of the [Section] 1292(b)
exception to it.”).
Supreme Court has made clear that interlocutory review under
Section 1292(b) should be the exception rather than the rule.
See Caterpillar v. Lewis, 519 U.S. 61, 74
(1996)(“Routine resort to [Section] 1292(b) requests
would hardly comport with Congress' design to reserve
interlocutory review for ‘exceptional' cases while
generally retaining for the federal courts a firm final
judgment rule.”). Likewise, the Eleventh Circuit has
explained that interlocutory appeals should be permitted only
“in exceptional cases where a decision of the appeal
may avoid protracted and expensive litigation, as in
antitrust and similar protracted cases.” McFarlin, 381
F.3d at 1256. “Because permitting piecemeal litigation
is bad policy, permitting liberal use of [Section] 1292(b)
interlocutory appeals is bad policy.” Id. at
obtain [Section] 1292(b) certification, the litigant must
show not only that an immediate appeal will advance the
termination of the litigation but also that the appeal
involves ‘a controlling question of law as to which
there is substantial ground for difference of
opinion.'” OFS Fitel, LLC v. Epstein, Becker
& Green, P.C., 549 F.3d 1344, 1359 (11th Cir.
2008)(quoting 28 U.S.C. §1292(b)). “Most
interlocutory orders do not meet this test.”
has failed to satisfy Section 1292(b)'s high burden for
four reasons. First, this garden-variety Title VII case is
not “exceptional.” See Cooper v. Navient
Sols., LLC, No. 8:16-cv-3396-T-30MAP, 2017 WL 2291329,
at *2 (M.D. Fla. May 25, 2017)(denying a Section 1292(b)
certification in part because ...