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K.S-A v. State of Hawaii

United States District Court, D. Hawaii

July 16, 2018

K.S-A, a minor, and J.S-A, a minor, by and through Joshua Douglas Franklin, as their Guardian Ad Litem Plaintiffs,



         For the reasons discussed below, the Court DENIES Plaintiffs' Motion for Interlocutory Appeal and for Stay Pending that Appeal (“June 4, 2018 Motion”), ECF No. 124.


         For purposes of the current motion, the Court discusses only those facts relevant to Plaintiffs' June 4, 2018 Motion.

         On March 1, 2018, Plaintiffs filed a motion for partial summary judgment regarding their Title IX claims. ECF No. 109. On May 7, 2018, the Court held a hearing on that motion, ECF No. 119, and on May 9, 2018 issued an order denying that motion (“Partial Summary Judgment Order”), ECF. No. 120. In that order, the Court found there to be genuine dispute of material fact regarding two of the Davis factors: whether the Plaintiffs suffered “sexual harassment . . . that is so severe, pervasive, and objectively offensive that it [could] be said to deprive [them] of access to the educational opportunities or benefits provided by the school, ” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999), and whether the Defendant was deliberately indifferent, id. See ECF No. 120 at 22-23, 45.

         Following Plaintiffs' filing of the June 4, 2018 Motion, Defendant filed a memorandum in opposition on June 15, 2018. ECF No. 131 (“Opp.”). On July 2, 2018, Plaintiffs filed a reply memorandum in support of their June 4, 2018 Motion. ECF No. 136 (“Reply”).

         It appears to the Court that a hearing in this matter is neither necessary nor appropriate. See Local Rule 7.2(d). After reviewing the briefing and relevant authorities, the Court hereby denies Plaintiffs' motion.


         Plaintiffs contend that the Court should permit them to file an interlocutory appeal under 28 U.S.C. § 1292(b); they ask in their Motion that the Partial Summary Judgment Order be amended to state that the necessary conditions for interlocutory review have been met and that the remainder of the case be stayed pending appeal. June 4, 2018 Mot. at 1.

         Courts have explained that a “movant seeking an interlocutory appeal [under 28 U.S.C. § 1292(b)] has a heavy burden to show that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (internal quotation marks and citation omitted); see also James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002) (“Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly.”); Du Preez v. Banis, No. CIV. 14-00171 LEK-RLP, 2015 WL 857324, at *1 (D. Haw. Feb. 27, 2015) (collecting cases). Certification for interlocutory appeal under § 1292(b) is only appropriate where: (1) The order involves a controlling question of law; (2) a substantial ground for difference of opinion exists as to that question; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

         I. Whether the Partial Summary Judgment Order Involves a Controlling Question of Law

         At the outset, the Court notes that Plaintiffs' arguments in support of the June 4, 2018 Motion seem to center around Plaintiffs' disagreement with the substance of the Court's decision to deny them partial summary judgment. Given the adverseness of that decision to Plaintiffs' interests, such disagreement is perhaps understandable-but § 1292(b) is not a vindicatory vehicle for mere difference of opinion or an opportunity for a “do-over” after an unfavorable result.[1]Rather, litigants seeking the certification of an order for interlocutory appeal must at the outset identify a controlling question of law involved in the at-issue order. See § 1292(b). This Plaintiffs have failed to do.

         A question of law is controlling if the resolution of the issue on appeal could “materially affect the outcome of litigation in the district court.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981), aff'd sub nom. Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983) (citation omitted). A “question of law” under § 1292(b) means a “pure question of law” rather than a mixed question of law and fact or the application of law to a particular set of facts.[2] Chehalem Physical Therapy, Inc. v. Coventry Health Care, Inc., No. 09-CV-320-HU, 2010 WL 952273, at *3 (D. Or. Mar. 10, 2010) (collecting cases); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (Section “1292(b) appeals were intended, and should be reserved, for situations in which the court of appeals can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order to determine the facts”); Ahrenholz v. Bd. of Trs., 219 F.3d 674, 677 (7th Cir. 2000) (stating that a question of law is one that presents an abstract legal issue that can be decided “quickly and cleanly without having to study the record”).

         Plaintiffs contend that “there is a controlling question of law whether the undisputed facts on their own require a favorable finding on each element, without regard to the disputed facts.” Reply at 2; see also June 4, 2018 Mot. at 4 (“As a matter of law, there is a substantial difference of opinion as to whether the other two elements of the Title IX [sic] likewise should have been found.”).[3] As noted above, Plaintiffs' overarching argument appears to come down to raw disagreement with the Court's decision to deny them partial summary judgment. See, e.g., Reply at 4 (“[N]o reasonable fact-finder could have found that the harassment was not severe, pervasive, and objectively offensive.”). Far from posing any pure or abstract questions of law, Plaintiffs would seek interlocutory appeal regarding the application of law to a particular set of facts, and specifically the manner in which this Court applied Title IX and related case law to the facts before it on summary judgment. But “Section 1292(b) was not designed to secure appellate review of ‘factual matters' or of the application of the acknowledged law to the facts of a particular case, matters which are within the sound discretion of ...

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