483 F. App'x 110
6th Cir.2012Background
- Kennedy, a City of Cincinnati pool patron, challenged a pool-pass revocation as a deprivation of a protected liberty interest devoid of notice and opportunity to be heard.
- Zucker, a Cincinnati Police Officer, expelled Kennedy from the pool based on staff accusations of lurking to watch children swim.
- The district court denied Kennedy’s and Zucker’s summary-judgment motions; later trial resulted in a verdict for Zucker.
- Kennedy appealed only the district court’s denial of his summary-judgment motion seeking pretrial relief.
- The Sixth Circuit initially affirmed the district court’s denial of Zucker’s qualified-immunity motion on appeal from the pretrial denial.
- The court concludes it has no jurisdiction to review an interlocutory denial of summary judgment and dismisses Kennedy’s appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the denial of summary judgment appealable? | Kennedy argues the issue is appealable under Ortiz exception. | Zucker argues the order is interlocutory and not appealable. | No; the appeal is interlocutory and not cognizable. |
| Does Ortiz create an exception for purely legal questions? | Ortiz allows appeals of purely legal issues based on undisputed facts. | Kennedy’s appeal involves disputed facts about process, not purely legal. | Not applicable; facts were disputed, so exception does not apply. |
| Did the district court's factual-dispute findings render the appeal non-appealable? | Evidence pre-trial favored Kennedy on notice and hearing issues. | Record at trial supersedes pre-trial evidence; cannot review pre-trial record on appeal. | Appeal remains impermissibly interlocutory; dismissal proper. |
| What is the proper appellate remedy given an ongoing trial and mixed rulings? | Granting summary judgment would provide finality on the legal issue. | Final judgment on the merits follows after trial; interlocutory denial cannot be appealed now. | Remains non-appealable under Ortiz until final judgment. |
Key Cases Cited
- Ortiz v. Jordan, 131 S. Ct. 884 (Supreme Court 2011) (interlocutory nature of summary-judgment orders; no immediate appeal)
- Owatonna Clinic—Mayo Health Sys. v. Med. Protective Co. of Fort Wayne, Ind., 639 F.3d 806 (8th Cir. 2011) (trial record governs post-trial review; pre-trial evidence not sole basis)
- Copar Pumice Co. v. Morris, 639 F.3d 1025 (10th Cir. 2011) (appellate review of interlocutory decisions; limits on appeal)
- Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (Supreme Court 1976) (finality and interlocutory status guidance for appeals)