observing that interlocutory appeals “all too frequently cause unnecessary delays in lower court proceedings and waste the resources of an already overburdened judicial system” (citations omitted)
How later courts described this case
- observing that interlocutory appeals “all too frequently cause unnecessary delays in lower court proceedings and waste the resources of an already overburdened judicial system” (citations omitted)
- cautioning that interlocutory review “must be used sparingly lest [it] increase the time and expense required for litigation”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VICTORIA GREEN, as
Administrator of the Estate of
Craigory Green,
Plaintiff,
v. Case No. 20-cv-00463-SPM
STEVEN MEEKS, et al.,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Pending before the Court is Defendants’, Wexford Health Sources, Inc.,
Mohammed Siddiqui, M.D., Vipin Shah, M.D., Michael Moldenhauer, N.P., and Mary
Jo Zimmer, N.P. (“Wexford Defendants”), Motion for Certification of Interlocutory
Appeal Pursuant to 28 U.S.C 1292(b) (Doc. 240). Plaintiff Victoria Green filed her
response in opposition (Doc. 243). For the following reasons, the motion is DENIED.
On February 1, 2023, this Court entered an Order regarding two of Green’s
Motions to Compel the Wexford Defendants to produce specific documents they had
claimed were privileged (Doc. 212). Specifically, the Court held that the peer-review
privilege created by the Illinois Medical Studies Act (“IMSA”) did not apply in federal
civil rights cases (Id.). The Court further held that the Wexford Defendants failed to
demonstrate that the documents claimed were protected by the work product
privilege. (Id.).
The Wexford Defendants did not seek to certify an interlocutory appeal from
that order but instead asked the Court to reconsider its ruling (Doc. 215). The motion
to reconsider did not include a request for a § 1292(b) finding (Id.). The Court denied
the motion for reconsideration on September 5, 2023 (Doc. 237).
DISCUSSION
28 U.S.C. § 1292 (b) provides an exception to the general rule that appellate
courts may only hear appeals from final decisions of district courts:
“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….”
The Seventh Circuit summarized § 1292(b)’s requirements in Ahrenholz v.
Board of Trustees of University of Illinois, 219 F.3d 674, 675-76 (7th Cir. 2000):
There are four statutory criteria for the grant of a section 1292(b)
petition …. there must be a question of law, it must be controlling,
it must be contestable, and its resolution must promise to speed up
the litigation … [t]here is also a nonstatutory requirement: the
petition must be filed in the district court within a reasonable
time after the order sought to be appealed.”
Federal law expresses strong policy against piecemeal appeals. Switzerland
Cheese Assoc. v. Horne's Market, 385 U.S. 23, 24 (1966). Interlocutory appeals are
generally “frowned on” in the federal judicial system because of their potential to
interrupt and delay litigation. Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535,
536 (7th Cir. 2012); see Asher v. Baxter Int'l Inc., 505 F.3d 736, 741 (7th Cir.
2007) (cautioning that interlocutory review “must be used sparingly lest [it] increase
the time and expense required for litigation”).
In this case, the Wexford defendants purportedly seek a certificate of appeal
to address whether attorney-client, work product and/or common interest
privilege(s) apply, claiming they involve controlling questions of law with
substantial ground for difference of opinion (Doc. 241). The Wexford defendants
further claim that an immediate appeal will materially advance the ultimate
termination of this litigation (Id.). However, this Court disagrees.
The Wexford defendants are grossly misstating this Court’s Order of February
1, 2023 (Doc. 212). While this Court did determine that Illinois’ peer-review privilege
under the Illinois Medical Studies Act (“IMSA”), 735 ILCS 5/8-2101, et seq., did not
apply to the documents in question, the Court did not determine that attorney-client,
work product, and/or common privilege did not apply (Id., p. 7). Instead, the Court
held that the Wexford defendants had not met their burden to “establish that the
work product privilege applies” (Id., p. 8).
As for materially advancing the ultimate termination of this lawsuit, that
could not be further from the truth. In fact, just two days after the filing of this
motion, the parties jointly sought additional time to complete discovery (Doc. 238).
Thus, if anything, an interlocutory appeal would slow down this litigation, as it often
does. See Asher v. Baxter Int'l Inc., 505 F.3d 736, 741 (7th Cir. 2007) (cautioning that
interlocutory review “must be used sparingly lest [it] increase the time and expense
required for litigation”); Herdrich v. Pegram, 154 F.3d 362, 368 (7th Cir.
1998) (observing that interlocutory appeals “all too frequently cause unnecessary
delays in lower court proceedings and waste the resources of an already
overburdened judicial system” (citations omitted)), rev'd on other grounds, 530 U.S.
211 (2000).
As another ground for denial, the Court finds that the Wexford Defendants’
motion for a certificate of appealability is not timely. It is clear that the order the
Wexford Defendants wish to appeal is not the September 15, 2023 order denying
reconsideration but the February 1, 2023 order. “With regard to timeliness, the
standard in the Seventh Circuit is that [a section 1292(b) motion] should be filed
promptly after the original order unless a good reason for the delay is given. Weir v.
Propst, 915 F.2d 283, 286 (7th Cir.1990). While there is no explicit time limit provided
by the statute for seeking a certificate of appealability, requests filed more than a
month or so after the order sought to be appealed are often deemed untimely. See,
e.g., Sterk v. Path, Inc., No. 13 CV 2330, 2014 WL 8813657, at *3 (N.D. Ill. Aug. 8,
2014) (delay of two weeks timely); Abrams v. Van Kampen Funds, Inc., No. 01 C 7538,
2002 WL 1989401, at *1 (N.D. Ill. Aug. 27, 2002) (two month delay considered
“inexcusably dilatory”); Morton Coll. Bd. of Trustees of Illinois Cmty. Coll. Dist. No.
527 v. Town of Cicero, 25 F. Supp. 2d 882, 885 (N.D. Ill. 1998) (month delay untimely).
Failure to comply with this requirement can be sufficient grounds to refuse
permission to appeal. Richardson Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d
957, 958 (7th Cir. 2000).
In this case, the original Order was denied on February 1, 2023; however,
the Motion for Certificate of Appeal was not filed until September 15, 2023, which
was 226 days, albeit 10 days after the Order was entered denying motion for
reconsideration. The Court also finds that resolution of the question of law would
not expedite resolution of the suit.
CONCLUSION
For the reasons set forth above, the Wexford Defendants Motion for
Certificate of Appealability (Doc. 240) is DENIED. The Wexford Defendants are
again ORDERED to produce the documents at issue within 7 days, or by October 9,
2023.
IT IS SO ORDERED.
DATED: October 2, 2023
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge