Free Motion for Certificate of Appealability - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES

William W. Drury, Jr., #005238 J. Gordon Cook, #000586 James W. Barnhouse, #013749 RENAUD COOK DRURY MESAROS, P.A. One North Central, Suite 900 Phoenix, Arizona 85004-4418 (602) 307-9900 [email protected] [email protected] [email protected] Attorneys for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. Paul G. Ulrich, No. 001838 Melinda K. Cekander, No. 012085 131 E. El Caminito Drive Phoenix, Arizona 85020-3503 (602) 248-9465 [email protected] [email protected] Co-Counsel for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, individually and on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; and on behalf of TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOXTANGA, Plaintiff, v. CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband wife; DOES I through V, inclusive, Defendants. No. CIV 02-2252-PHX-JAT CORRECTIONAL HEALTH RESOURCES, INC., ET AL., MOTION FOR CERTIFICATION OF NOVEMBER 7, 2005 ORDER DENYING MOTION TO REMAND and MOTION FOR STAY OF PROCEEDINGS PENDING NINTH CIRCUIT REVIEW (Accelerated Oral Argument Requested)

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

(Page 1, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 287

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;317688;1 Filed 11/09/2005 Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES

Pursuant to 28 U.S.C. § 1292(b), Defendants Correctional Health Resources, Inc., Kenneth and Rosemary Faiver, and Joseph Edward Rich, M.D. ("CHR Defendants") respectfully move that the Court certify its November 7, 2005 Order denying CHR Defendants' Motion to Remand for immediate interlocutory review by the Ninth Circuit Court of Appeals. CHR Defendants further move that the Court stay all further proceedings in this matter, including the trial now set for November 29, 2005, pending completion of Ninth Circuit review concerning this issue. CHR Defendants further request accelerated oral argument concerning these motions at the pretrial conference now set for November 15, 2005 at 2:30 p.m. These motions are supported by the attached Memorandum of Points and Authorities and the Court's entire file in this matter, which are incorporated by this reference. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION On November 7, 2005, the Court denied CHR Defendants' Motion to Remand, finding it had subject-matter jurisdiction to hear this matter. The Court then discussed Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691 (7 t h Cir. 2003). That opinion begins with the statement, "Once again litigants' insouciance toward the requirements of federal jurisdiction has caused a waste of time and money." 350 F.3d at 692.1 The Court's discussion of that case could prove prophetic if this case goes to trial and the Ninth Circuit ultimately reverses, finding no subject-matter jurisdiction. At this point, if the CHR Defendants' jurisdictional analysis is correct, there has been a waste of this Court's judicial resources, but no real waste of party resources because the parties would have had to prepare the case for trial in any event, whether it was in federal or state court.

If CHR Defendants are correct and are forced to try this case twice, they will seek recovery of attorneys' fees from Plaintiffs' counsel for having to try this case twice using Judge Easterbrook's rationale in Belleville Catering. CHR Defendants are attempting to obtain a final ruling on this issue prior to any trial to avoid precisely what occurred in that case.

1

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

(Page 2, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 287

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;317688;1 Filed 11/09/2005 Page 2 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

However, if this case now proceeds to trial in this Court and the Court lacks jurisdiction, both significantly greater waste of judicial resources and a substantial waste of party resources will occur. Accordingly, it is in everyone's best interests to stay all further proceedings in this matter, including the trial now scheduled to begin on November 29, 2005, pending Ninth Circuit review of the jurisdictional issue. If the Ninth Circuit exercises its discretion to accept review of the

jurisdictional issue and makes a final determination concerning it, the parties can be assured they will only try this issue once, either in this Court or in state court. If, on the other hand, the

jurisdictional issue is not now decided, it is quite possible the parties will be forced to try this issue twice. The Ninth Circuit has expressly approved use of 28 U.S.C. § 1292(b) to appeal an interlocutory order where to do so "would avoid protracted and expensive litigation." Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). In re

Permitting an interlocutory

appeal here also would accomplish that result ­ ensuring only one trial of this matter and avoiding the risk of two trials. ARGUMENT I. THIS COURT SHOULD CERTIFY ITS ORDER DENYING CHR DEFENDANTS' MOTION TO REMAND FOR INTERLOCUTORY APPEAL. 28 U.S.C. § 1292(b) provides:

19 20 21 22 23 24 25 Thus, according to this statute, the certification requirement is met if (1) there is a 26
LAW OFFICES

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order; Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

controlling question of law; (2) there are substantial grounds for a difference of opinion; and (3)
(Page 3, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 287

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;317688;1 Filed 11/09/2005 Page 3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES

immediate appeal may materially advance the ultimate termination of the litigation. Cement Antitrust Litigation, 673 F.2d at 1026. All three requirements are met here. A. Subject-matter Jurisdiction Is A Controlling Question Of Law.

See In re

A "controlling question of law must encompass `every order which, if erroneous, would be reversible error on final appeal.'" In re Cement Antitrust Litigation, 673 F.2d at 1026. An interlocutory order deciding jurisdictional issues involves a controlling question of law. See

United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959); see also Estate of Bishop v. Bechtel Power Corporation, 905 F.2d 1272, 1275 (9th Cir. 1990) (§1292(b) is appropriate vehicle to seek review of interlocutory review denying motion to remand); Burchett v. Bardahl Oil Company, 470 F.2d 793, 796 (10 t h Cir. 1973) ("The interlocutory order overruling appellant's objection to jurisdiction is properly presented for review under the flexible provisions of 28 U.S.C. § 1292(b) as one in which an interlocutory appeal might avoid protracted and expensive litigation."); Segni v. Commercial Office of Spain, 650 F.Supp. 1045, 1046-1047 (N.D.Ill. 1987) ("Federal courts are courts of limited jurisdiction; we cannot hear cases over which we do not have subject matter jurisdiction, and can be reversed for doing so. Our ruling as to subject matter jurisdiction is therefore a controlling question under § 1292(b)."). Here, if this Court lacks subject matter jurisdiction, the Ninth Circuit would have no option other than to reverse any judgment entered by this Court and remand with instructions to remand the case to state court. See Bialac v. Harsh Building Co., 463 F.2d 1185, 1186 (9th Cir. 1972) (stating "jurisdiction is jurisdiction" when reversing a judgment following trial, finding no jurisdiction); Belleville Catering, 350 F.3d at 693 ("A court lacks discretion to consider the merits of a case over which it is without jurisdiction."). controlling issue of law. Thus, the jurisdictional issue is a

B.

There Are Substantial Grounds For A Difference Of Opinion.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

(Page 4, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 287

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;317688;1 Filed 11/09/2005 Page 4 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES

One need look no further than the CHR Defendants' motion, the Plaintiffs' response, and CHR Defendants' reply to determine there are substantial grounds for a difference of opinion. CHR Defendants contend the issue is one of Article III jurisdiction based upon the lack of any plaintiff with Article III standing to assert the claim. party in interest pursuant to Fed.R.Civ.P. 17.2 Plaintiffs contend that because they asserted a claim on their own behalf for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights, this Court has federal question jurisdiction. They further contend that once they amended their complaint to allege Rubecca Mikkelsen is the personal representative of the estate of Kelly Mikkelsen, they solved the problem of the lack of a real party in interest before this Court. Thus, they argue this Court has subject matter jurisdiction. CHR Defendants have disagreed with that position, arguing it is insufficient to claim a violation of someone's constitutional rights (a federal question) and to have a real party in interest before the Court. Meeting those two requirements, standing alone, does not confer jurisdiction upon this Court. Instead, it is absolutely essential to have a party with Article III standing before this Court in order to confer subject matter jurisdiction upon this Court. Here, the only party with Article III standing to assert a claim or to recover damages for the alleged violation of Kelly Mikkelsen's constitutional rights is the estate of Kelly Mikkelsen. Yet a review of the First Amended Complaint (as well the Second and Third Amended Complaints) reveals the estate is not a named party. That review further reveals the estate is not Plaintiffs contend the issue is one of real

seeking any damages on its own behalf. Instead, Plaintiffs are seeking damages in their own right for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights. party with Article III standing now before this Court. Thus, there still is no

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

These arguments were set forth in the motion, response and reply regarding jurisdiction. They will not be set forth in full, but are summarized here for the Court's convenience. Citations supporting CHR Defendants' assertions are found in their motion and reply.
(Page 5, CIV 02-2252-PHX-JAT)

2

Case 2:02-cv-02252-JAT

1004.0604

Document 287

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;317688;1 Filed 11/09/2005 Page 5 of 7

1 2 3 4 5 6

The parties have substantially different views on this issue.

Both parties contend their

positions are supported by case authority. Thus, this second requirement is met. See McClelland v. Gronwaldt, 958 F.Supp. 280, 283 (E.D.Tex. 1997) (certifying order for interlocutory appeal where parties had substantial difference of opinion on issue). C. Immediate Appeal May Materially Advance The Ultimate Termination Of The Litigation.

If the Court erred in deciding the jurisdictional question, immediate appeal may materially 7 advance the ultimate termination of the litigation. Certainly it would terminate the litigation in 8 the federal court. See Segni, 650 F.Supp. at 1047. Moreover, there is "no purpose in proceeding 9 with costly and time-consuming litigation if the [Court of Appeals] will eventually hold that there 10 was no jurisdiction." Myles v. Schlesinger, 436 F.Supp. 8, 22 (E.D.Pa. 1977) (certifying order 11 on its own motion, sua sponte). 12 II. 13 The purpose for certifying this jurisdictional question to the Ninth Circuit is to avoid the 14 risk of having to try this case twice. Unless this case is stayed pending that review, that risk cannot 15 be avoided. Thus, CHR Defendants move that the Court stay all further proceedings in this matter, 16 including the trial now scheduled to commence on November 29, 2005, pending Ninth Circuit 17 review of the jurisdictional question. 18 CONCLUSION 19 Based upon the foregoing, CHR Defendants respectfully request that the Court certify its 20 November 7, 2005 Order denying their Motion to Remand for interlocutory appeal. 21 Defendants further move that this Court stay all further proceedings in this matter, including the 22 trial now scheduled to commence on November 29, 2005, pending that review. 23 24 RESPECTFULLY SUBMITTED this 9th day of November, 2005. 25 RENAUD COOK DRURY MESAROS, PA 26
LAW OFFICES

THIS COURT SHOULD STAY THIS MATTER PENDING APPELLATE REVIEW.

CHR

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

(Page 6, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 287

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;317688;1 Filed 11/09/2005 Page 6 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 s/Bobby Doisher 20 21 22 23 24 25 26
LAW OFFICES

By: s/ James W. Barnhouse William W. Drury, Jr. James W. Barnhouse Phelps Dodge Tower One North Central, Suite 900 Phoenix, AZ 85004-4418 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. PAUL G. ULRICH, PC

By: s/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 East El Caminito Drive Phoenix, Arizona 85020-3503 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. E-Filed with the U.S. District Court this 9th day of November, 2005; and COPY of the foregoing delivered this 9th day of November, 2005, to: Hon. James A. Teilborg U.S. District Court 401 West Washington Street Suite 523, SPC 51 Phoenix, Arizona 85003-0001

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

(Page 7, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 287

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;317688;1 Filed 11/09/2005 Page 7 of 7