8:09-cv-00363
D. Neb.Jan 3, 2012Background
- Kuhrs (plaintiffs) sued Millard Public School District and Dr. Keith Lutz in the District of Nebraska; First Amendment claims with requests for injunctive/declaratory relief and nominal damages; Court previously held injunctive relief moot but nominal damages preserved jurisdiction.
- Defendants moved to amend an order denying their summary-judgment motion to permit a §1292(b) interlocutory appeal.
- The November 8, 2011 order denied the defendants’ motion to dismiss or for summary judgment; it held nominal damages were encompassed in the relief claim and therefore preserved some jurisdiction.
- Plaintiffs’ theory: nominal damages create a redressable claim that prevents mootness; defendants sought to appeal that issue under §1292(b).
- Court applies §1292(b) factors to determine whether to certify an interlocutory appeal and ultimately denies the motion to amend.
- Judicial officer: Chief Judge Laurie Smith Camp; date of decision: January 3, 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the issue is a controlling question of law under §1292(b). | Kuhr(s) seek appeal on mootness/nominal damages. | MPSD/Lutz contend the mootness-nominal damages issue is a controlling question. | Yes, it is a controlling question of law. |
| Whether there is a substantial ground for difference of opinion on the issue. | Nominal damages can redress and prevent mootness per Advantage Media. | Disagreement is insufficient; McConnell concurrence does not create substantial ground. | There is not a substantial ground for difference of opinion. |
| Whether certification would materially advance the termination of the litigation. | An interlocutory appeal would streamline resolution. | Appeal would avoid trial, but case is not extraordinary; not material advancement. | Certification would not materially advance the litigation. |
Key Cases Cited
- Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006) (holding nominal damages redressability permits standing and prevents mootness)
- Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004) (McConnell concurrence on mootness and nominal damages (not controlling))
- Comm. for the First Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992) (nominal damages and mootness context (cited for framework))
- O’Connor v. City & Cnty. of Denver, 894 F.2d 1210 (10th Cir. 1990) (nominal damages preclusion of mootness (cited))
- White v. Nix, 43 F.3d 374 (8th Cir. 1994) (guidance on §1292(b) substantial ground for difference of opinion)
- Union County, Iowa v. Piper Jaffray & Co., 525 F.3d 643 (8th Cir. 2008) (requires disproportionate impact of interlocutory appeal beyond extraordinary cases)
- U.S. Rubber Co. v. Wright, 359 F.2d 784 (9th Cir.1966) (historical caution on use of §1292(b) in extraordinary cases)
- Couch v. Telescope Inc., 611 F.3d 629 (9th Cir. 2010) (unclear controlling law grounds for §1292(b))