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Thymes v. Verizon Wireless, Inc.

United States District Court, D. New Mexico

March 16, 2017

CARL GENE THYMES, Plaintiff,
v.
VERIZON WIRELESS, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon pro se “Plaintiff's Memorandum in Support of Combined Petition for Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b) and Motions to Amend Order and Stay Proceedings Pending Appeal” (Petition for Certification), filed January 17, 2017. (Doc. 98). Plaintiff's Petition for Certification concerns the Court's Memorandum Opinion and Order, filed on September 28, 2016, and the Memorandum Opinion and Order, and Amended Dismissal of Claims Against Defendant Restrepo, both filed on January 9, 2017. (Docs. 49, 88, and 89). These orders and rulings pertain to the dismissal of Plaintiff's claims against Defendant Carlos Restrepo. Defendant filed a response on January 27, 2017, and Plaintiff filed a reply on January 30, 2017.[1] (Docs. 108 and 109). Each party seeks an award of attorney's fees and/or costs should they prevail on the Petition for Certification. Having considered the Petition for Certification and the accompanying briefing, the Court denies the Petition for Certification and denies the parties' respective requests for an award of attorney's fees and/or costs.

         A. Background

         This is an employment discrimination lawsuit. Plaintiff's lawsuit includes Title VII claims against Restrepo, Plaintiff's supervisor, and Verizon Wireless, Inc., Plaintiff's employer. Plaintiff also brought a state slander/defamation claim against Restrepo.

         On September 28, 2016, the Court granted Defendant Restrepo's Motion to Dismiss Plaintiff's Complaint (Doc. 6). (Doc. 49). In doing so, the Court determined that it lacked subject matter jurisdiction over the Title VII claims against Restrepo, because Plaintiff failed to exhaust administrative remedies as to him. Id. at 5. The Court further determined that Plaintiff could not legally bring the Title VII claims against Restrepo, personally, because of his supervisory role. Id. In addition, the Court decided that Plaintiff failed to state a plausible slander/defamation claim against Restrepo, and that Plaintiff's failure to oppose the request to dismiss the slander/defamation claim constituted consent to dismiss the claim and was also tantamount to abandonment of that claim. Id. at 6-7. Based on the foregoing, the Court dismissed Plaintiff's claims against Restrepo with prejudice. Id. at 7; (Doc. 50).

         Plaintiff then filed a motion to reconsider the dismissal of the claims against Restrepo.[2]On January 9, 2017, the Court entered a Memorandum Opinion and Order deciding the motion to reconsider. (Doc. 88). The Court first denied Plaintiff's request to hold a hearing on the motion to reconsider and on all motions filed in this case. Plaintiff asserted, and continues to assert, that hearings are necessary to ensure that Defendant does not tamper with the Court's orders and rulings. The Court then granted the motion to reconsider only to the extent of dismissing Plaintiff's slander/defamation claim against Defendant Restrepo without prejudice, instead of with prejudice, because Plaintiff convinced the Court he had not abandoned that claim. Id. at 9; (Doc. 89). Otherwise, the Court denied the motion to reconsider.

         Plaintiff now requests, under Section 1292(b), that the Court certify for interlocutory appeal the issue of whether the Court has subject matter jurisdiction over the Title VII claims against Restrepo. Should the Court certify this issue for an interlocutory appeal, Plaintiff asks that the Court stay the proceedings pending the appeal. Finally, Plaintiff seeks an award of costs if he prevails on the Petition for Certification. Defendant opposes the Petition for Certification and seeks an award of attorney's fees and costs should it prevail on the Petition for Certification.

         B. Discussion

         1. The Petition for Certification

         Under Section 1292(b), a district judge has discretion to certify an order for interlocutory appeal if that “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); Swint v. Chambers County Com'n, 514 U.S. 35, 47 (1995) (“Congress … chose to confer on district courts first line discretion to allow interlocutory appeals.”). Such certification is “limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate and final decision of controlling questions encountered early in the action.” State of Utah By & Through Utah State Dep't of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (citation omitted). The party moving for certification bears the burden of demonstrating that Section 1292(b) should apply. Northern Arapaho Tribe v. Ashe, 925 F.Supp.2d 1206, 1223 (D. Wyo. 2012) (citing Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010)).

         a. Whether the Court's Orders Involve a Controlling Question of Law

         This Court recently summarized what “question of law” means in the context of Section 1292(b).

“Question of law” refers to a “question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine…..” It does not include questions requiring a Court of Appeals to “delve beyond the surface of the record in order to determine the facts.” “The legal question must be stated at a high enough level of abstraction to lift the question out of the details of the evidence or facts of a particular case and give it general relevance to other cases in the same area of law.”

XTO Energy, Inc. v. ATD, LLC, 189 F.Supp.3d 1174, 1193 (D.N.M. 2016) (citations omitted). In other words, “courts should certify questions when they are unsure of what the law is, not when there is merely a dispute as to how the law applies to the facts of a particular situation.” Certain Underwriters at Lloyd's, London v. Nance, 2006 WL 4109675, at *3 (D.N.M.). Moreover, a matter requiring the court's discretion does not constitute a “controlling legal question” under Section 1292(b). White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994) (“A legal question of the type referred to in § 1292(b) contrasts with a ‘matter for the discretion of the trial court.'”) (quoting Garner v. Wolfinbarger, 430 F.2d 1093, 1096-97 (5th Cir.1970), cert. denied, 401 U.S. 974 (1971)).

         Plaintiff specifically argues that the controlling question of law is whether the Court lacks subject matter jurisdiction over the Title VII claims against Restrepo when Defendant is tampering with the Court's orders. Plaintiff also states that “[t]he question raised here concerns the meaning of the statutory term “EECO” [sic] in its filing requirements and named defendants: Does Carlos Restrepo and the validity of the order ...


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