Opinion
Civ. NO: 98-2757 SECTION: "J" (5)
April 10, 2000
On March 1, 2000, this Court denied plaintiff's Motion for Partial Summary Judgment on the Issue of Liability (Or, in the Alternative, Product Identification and Defect) or, Alternatively, Motion to Strike (Rec. Doc. 63). During the Pre-trial Conference on March 30, 2000, the Court, on its own motion, reconsidered its ruling and granted plaintiff's motion in part, rendering summary judgment in favor of plaintiff on the issue of product identification. (Rec. Doc. 115). At that time, the Court orally advised the parties of the reasons for granting the partial summary judgment. Subsequently, by minute entry dated April 7, 2000, the Court issued written reasons for its ruling. (Rec. Doc. 122).
Defendants have now filed a Notice of Interlocutory Appeal (Rec. Doc. 123) from the Court's granting of the partial summary judgment. At the same time, defendants have filed a motion asking this Court to stay this matter pending resolution of its interlocutory appeal or, alternatively, to vacate the current trial setting.
The trial of this matter is scheduled to commence on April 10, 2000 at 8:30 a.m. Defendant filed its motion to stay or vacate the trial date on the afternoon of Friday, April 7, 2000, and requested an expedited hearing on its motion prior to trial. The Court advised the parties that it would consider defendant's motion on April 10, 2000, at 8:30 a.m., prior to commencement of the trial.
The Court has heard oral arguments on defendants motion, and for the following reasons, DENIES defendant's motion to stay or vacate the trial setting.
Ordinarily, only "final decisions" of a district court are appealable. 28 U.S.C. § 1291. However, in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949), the Supreme Court recognized "a `small class' of district court decisions that, though short of final judgment, are immediately appealable because they `finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated'." Behrens v. Pelletier, 516 U.S. 299, 305, 116 S.Ct. 834, 830 (1996) (holding that denial of summary judgment on grounds of qualified immunity was appealable final judgment).
The key language from Cohen requires that the order from which an interlocutory appeal is sought must be both "collateral to" and "separable from" the merits of plaintiff's underlying claim.Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 2816 (1985); Behrens, 516 U.S. 299, 309, 116 S.Ct. 834, 840, at FN. 3.
In this case, the order from which defendant seeks to take an interlocutory appeal is clearly not one which is "separable from" the merits of plaintiff's claim. This is a products liability tort claim for personal injuries allegedly sustained by plaintiff Emmett Hyde while using a hammer. The Court has granted partial summary judgment to plaintiff only on the issue of product identification, i.e., that the hammer was manufactured and sold by defendant Stanley. This issue is part and parcel of the merits of plaintiffs claim. Accordingly, the defendants attempt to characterize the Court's order as appealable immediately under the so-called "collateral order doctrine" is frivolous and without merit.
Since the Court has determined and hereby certifies that the interlocutory appeal filed by defendant is frivolous, the filing of such notice of appeal does not divest this court of jurisdiction to proceed with the trial of this matter as scheduled. Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989);Yates v. Cleveland, 941 F.2d 104, 105 (9th Cir. 1992) Stewart v. Donges, 915 F.2d 572, 576-77 (10th Cir. 1990); see also: Behrens, 516 U.S. 299, 310, 116 S.Ct. 834, 841.
For these reasons, defendants motion to stay or, alternatively, to vacate the trial setting is hereby DENIED.