The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LIBERTY FORD LINCOLN ) Case No. 1:21-cv-02085
MERCURY, INC., et al., )
) Judge J. Philip Calabrese
Plaintiffs, )
) Magistrate Judge
v. ) Jonathan D. Greenberg
)
FORD MOTOR COMPANY, )
)
Defendant. )
)
OPINION AND ORDER
Plaintiffs, six Northeast Ohio Ford dealerships, seek interlocutory review of
the Court’s Opinion and Order dated December 5, 2022. For the reasons that follow,
the Court DENIES Plaintiffs’ motion.
PROCEDURAL BACKGROUND
On December 5, 2022, the Court denied Plaintiffs’ motion for a partial
summary judgment. (ECF No. 42.) That ruling involved a question of first
impression regarding interpretation of Section 4517.59(A)(14) of the Ohio Revised
Code, which prohibits a manufacturer of new motor vehicles, like Defendant Ford
Motor Company, from refusing to disclose certain information to new motor vehicle
dealers, like Plaintiffs. At bottom, Plaintiffs contend that the statute requires Ford
to disclose which vehicles each dealership in the Pittsburgh region receives and the
process for that allocation, including how Ford exercises its discretion in distributing
new vehicles to dealers. (See ECF No. 37, PageID #514.) Formally, in Count 1 of
their second amended complaint, Plaintiffs seek a declaration that “Plaintiffs indeed
have the right, guaranteed by statute, to the information that Defendant must
disclose to Plaintiffs under . . . the express mandate of R.C. 4517.59(A)(14).” (ECF
No. 29, ¶ 53, PageID #418.) In Count 2, Plaintiffs seek a declaration that Ford’s
violation of the statute entitles them to a mandatory injunction forcing the disclosure
of the information they seek. (Id., ¶ 57, PageID #419.)
Plaintiffs’ second amended complaint alleges four additional counts. (Id.,
¶¶ 120–99, PageID #431–43.) Three are stand-alone causes of action. Specifically,
Counts 3, 4, and 6 allege violations of the Ohio Motor Vehicle Dealers Act, a violation
of the federal Automobile Dealers’ Day in Court Act, and tortious interference,
respectively. (Id., ¶¶ 120–48, 192–99, PageID #431–36 & #442–43.) Each of those
counts focuses on Ford’s conduct in allocating and diverting new motor vehicles. (See,
e.g., id., ¶¶ 122, 144, 147, & 193, PageID #432, #436, & #443.) Count 5 seeks
injunctive relief. (Id., ¶¶ 149–55, PageID #436–37.)
ANALYSIS
In arguing that the Court should certify its Opinion and Order for immediate
appeal, Plaintiffs cite two independent grounds: (1) Rule 54(b); and (2) 28 U.S.C.
§ 1292(b). The Court addresses each in turn.
I. Rule 54(b)
Generally, when a district court grants or denies a partial motion for summary
judgment, “th[at] decision is not a final order for appellate purposes.” Planned
Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 500 (6th Cir. 2012); see also
Adler v. Elk Glenn, LLC, 758 F.3d 737, 739 (6th Cir. 2014). Under Rule 54(b), if a
case involves multiple claims or parties, a district court “may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties.” Fed. R. Civ.
P. 54(b). “Rule 54(b) is not to be used routinely.” Corrosioneering, Inc. v. Thyssen
Env’t Sys., Inc., 807 F.2d 1279, 1282 (6th Cir. 1986) (citation omitted). After all, the
Rule “strike[s] a balance between the undesirability of piecemeal appeals and the
need for making review available at a time that best serves the needs of the parties.”
Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60 (6th Cir. 1986) (citation omitted).
Before a district court may enter a final judgment on fewer than all claims
under Rule 54(b), it must make two independent findings. General Acquisition, Inc.
v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir. 1994). First, it must determine “that
it is dealing with a ‘final judgment.’” Id. at 1027 (citing Curtiss-Wright Corp. v.
General Elec. Co., 446 U.S. 1, 7 (1980)). A final judgment is a decision that disposes
of a cognizable claim for relief. Curtiss-Wright Corp., 446 U.S. at 7 (citing Sears,
Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)). Second, the district court must
“expressly determin[e] that there is no just reason for delay.” Fed. R. Civ. P. 54(b);
see General Acquisition, 23 F.3d at 1027.
I.A. No Just Reason for Delay
The parties do not dispute that the Court’s Opinion and Order addresses only
some of Plaintiffs’ multiple claims or that it constitutes a final judgment. (See ECF
No. 44, PageID #631–34; ECF No. 45, PageID #650.) Instead, they focus on whether
there is no just reason for delay. (Id.) In making that determination, courts must
“balance the needs of the parties against the interests of efficient case management.”
General Acquisition, 23 F.3d at 1027. Under the law of this Circuit, courts consider
a non-exhaustive list of factors:
(1) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might be mooted by future developments;
(3) the possibility that the appellate court might be required to consider the
same issue a second time; (4) the existence of a claim or counterclaim which
might result in a set-off against the judgment sought to be made final; and
(5) other miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of competing claims,
expense and the like.
Corrosioneering, Inc., 807 F.2d at 1283 (citations omitted).
Plaintiffs contend that these factors favor certification. (ECF No. 43,
PageID #622–23; ECF No. 45, PageID #650–55.) Defendant opposes certification,
arguing first that Plaintiffs have only “ma[de] conclusory statements that each factor
weighs in their favor.” (ECF No. 44, PageID #633.) On this point, the Court
disagrees. Plaintiffs sufficiently analyze the factors under the Rule. For example, in
discussing the fourth factor, Plaintiffs argue that “[t]here is no counterclaim.” (ECF
No. 43, PageID #622.) And in addressing the fifth, Plaintiffs argue that an immediate
appeal will expedite the time needed for discovery. (Id.) Plaintiffs’ analysis far
exceeds that provided in Williams v. Shelby County Board of Education, No. 2:17-cv-
2050, 2022 WL 331012 (W.D. Tenn. Feb. 3, 2022), which Defendant cites. There, the
plaintiff’s motion listed the factors but did not address them. Id. at *3. Indeed, it
merely asserted, “[t]here is no just reason for delay in entering a final judgment on
the [relevant] claim.” Id. Plaintiffs provide more than that conclusory statement.
Nonetheless, the Court finds that Plaintiffs have not demonstrated that there
is no just reason for delay. An interlocutory appeal would result in months (or more)
of delay. Whatever ruling the Sixth Circuit reaches, litigation of Plaintiffs’ remaining
claims in Counts 3 through 6 awaits. An appeal now results in delay with little, if
any, benefit in advancing resolution of those claims, which Plaintiffs concede stand
alone and separately from those at issue in their motion for partial summary
judgment. (ECF No. 43, PageID #622.)
Plaintiffs argue that a ruling in their favor on Counts 1 and 2 would shorten
discovery. Because Plaintiffs can obtain the information at issue in discovery,
however, it is difficult to see what an appeal, even with a ruling in their favor, would
accomplish as a practical matter. Plaintiffs argue that immediate appeal would
obviate the costs and time associated with discovery, but it is difficult to see how.
Production of the information at issue, whether under Rules 26 through 37 or
Section 4517.59(A)(14) will likely involve substantially similar tools and disputes. To
the contrary, proceeding in discovery would moot all but the declaratory dimension
of Plaintiffs’ argument about the meaning of Section 4517.59(A)(14).
I.B. Plaintiffs’ Other Arguments
In reply, Plaintiffs raise two additional arguments for Rule 54(b) certification.
First, they argue that the amenability of the Court’s ruling to change does not impact
whether it should be certified under Rule 54(b). (ECF No. 45, PageID #655–56.)
Second, they contend that this case presents circumstances like those supporting a
temporary restraining order. (Id., PageID #656–57.) But the Court will not entertain
an argument made for the first time in reply. ECIMOS, LLC v. Nortek Glob. HVAC,
LLC, 736 F. App’x 577, 584 (6th Cir. 2018). In any event, those arguments have no
impact on the Court’s analysis. Any interlocutory order “may be revised at any time
before the entry of a judgment.” Fed. R. Civ. P. 54(b). Having determined that
Section 4517.59(A)(14) does not entitle Plaintiffs to the information they seek, the
argument that the unavailability of an immediate appeal frustrates their rights
under that statute has no force. At bottom, Counts 1 and 2 are not likely to prove
outcome determinative for the action as a whole.
* * *
For all these reasons, the Court determines that this case does not present a
rare circumstance appropriate for certifying an immediate appeal under Rule 54(b).
II. 28 U.S.C. § 1292(b)
A district court may also certify an order for interlocutory appeal under
28 U.S.C. § 1292(b). Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 36 (1995).
Certification under that statute is granted sparingly and only in exceptional cases.
Kraus v. Board of Cnty. Rd. Comm’rs for Kent Cnty., 364 F.2d 919, 922 (6th Cir. 1966).
Certification is appropriate where (1) the order involves a controlling question of law;
(2) a substantial ground for difference of opinion exists regarding the correctness of
the decision; and (3) an immediate appeal may materially advance the ultimate
termination of the litigation. West Tenn. Chapter of Associated Builders &
Contractors, Inc. v. City of Memphis (In re City of Memphis), 293 F.3d 345, 350 (6th
Cir. 2002) (citing 28 U.S.C. § 1292(b), and Cardwell v. Chesapeake & Ohio Ry. Co.,
504 F.2d 444, 446 (6th Cir. 1974)).
According to Plaintiffs, this is an exceptional case that satisfies each of these
elements. (See ECF No. 43, PageID #623–27; ECF No 45, PageID #657–60.)
Defendant disagrees and argues that the first and third are unmet. (ECF No. 44,
PageID #635–36; ECF No. 45, PageID #657–58 & #659–60.) Because the Court’s
ruling involves a question of first impression about which reasonable people may
disagree, the Court focuses on the two disputed elements.
II.A. Controlling Question of Law
First, the parties dispute whether the Court’s Opinion and Order involves a
controlling question of law. (Compare ECF No. 43, PageID #624–25, with ECF
No. 44, PageID #635.) Embedded in this element are two requirements: (1) the order
must present a question of law, and (2) it must be controlling. United States ex rel.
Elliott v. Brickman Grp. Ltd., LLC, 845 F. Supp. 2d 858, 865 (S.D. Ohio 2012)
(collecting cases). “A legal issue is controlling if it could materially affect the outcome
of the case.” In re City of Memphis, 293 F.3d at 351 (citing In re Baker & Getty Fin.
Servs., Inc. v. National Union Fire Ins. Co., 954 F.2d 1169, 1172 n.8 (6th Cir. 1992)).
The Court’s Opinion and Order satisfies the first requirement. That ruling
turned on interpretation of Section 4517.59(A)(14). (ECF No. 42, PageID #605.)
Statutory interpretation presents a question of law. Bureau of Workers’ Comp. v.
Verlinger, 153 Ohio St. 3d 492, 2018-Ohio-1481, 108 N.E.3d 70, ¶ 6; United States v.
Dedman, 527 F.3d 577, 584 (6th Cir. 2008). Defendant argues that “Plaintiffs are
attempting to use an appeal to evade this Court’s discovery process,” and because
discovery falls within the Court’s discretion, there is no question of law. (ECF No. 44,
PageID #635.) This argument is unpersuasive. The relevant inquiry is not Plaintiffs’
alleged intent in pursuing an interlocutory appeal but what issues the Court’s ruling
resolves. See 28 U.S.C. § 1292 (requiring that a district court be “of the opinion that
such order involves a controlling question of law”). On that score, the Court’s ruling
unquestionably resolved a question of law.
And that question of law is controlling as to Counts 1 and 2. Defendant
maintains that the ruling leaves the balance of the dispute to litigate. Fair enough.
But that is generally the case. “The resolution of an issue need not necessarily
terminate an action or ‘have precedential value for a number of pending cases’ to be
‘controlling.’” In re Baker & Getty Fin. Servs., Inc., 954 F.2d 1169, 1172 n.8 (6th Cir.
1992) (citation omitted). Plaintiffs’ bigger problem with this prong of the analysis lies
in the effect of the legal question in Counts 1 or 2 and how that issue will affect the
balance of the litigation. As explained above, in the analysis under Rule 54(b), the
Court does not see interpretation of Section 4517.59(A)(14) as driving resolution of
the parties’ broader dispute. Therefore, that legal question presents a controlling
question only with respect to Counts 1 and 2, but not as to the litigation as a whole
or a sufficiently meaningful component of it to warrant an interlocutory appeal.
II.B. Material Advancement of the Termination of Litigation
Even if this case satisfies the first element of Section 1292(b), interlocutory
appeal would not materially advance the termination of this litigation. In assessing
this element, courts generally consider whether interlocutory appeal will “save
substantial judicial resources and litigant expense.” See, e.g., West Tenn. Chapter of
Associated Builders & Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015,
1026 (W.D. Tenn. 2000); Newsome v. Young Supply Co., 873 F. Supp. 2d 872, 878
(E.D. Mich. 2012). “When litigation will be conducted in substantially the same
manner regardless of [the court’s] decision,” this element is not met. In re City of
Memphis, 293 F.3d at 351 (citation omitted).
In this case, an interlocutory appeal will not save resources and expenses.
Whether Plaintiffs succeed on Counts 1 and 2, the core of their case—Counts 3
through 6—will continue. In theory, an interlocutory appeal might change “the
manner for resolving” those claims. (ECF No. 43, PageID #627; see also ECF No. 45,
PageID #660.) As noted, however, whether styled as discovery or the production of
information under the statute, the next phase of the case will involve production of
information. Plaintiffs argue that Ford is preventing efficient discovery but have
involved the Court in discovery in only a limited way. (ECF No. 45, PageID #649 n.2,
#653 n.4 & #660.) The parties well know that the Court stands ready to intervene to
ensure compliance with their respective discovery obligations.
In the end, even if an interlocutory appeal would determine a controlling
question of law on Counts 1 and 2, that determination would materially advance the
litigation no more than ordinary discovery on the remaining counts. This is not a
case where the Court’s interlocutory ruling sufficiently disposes of enough of the
dispute to warrant interlocutory review. Accordingly, the Court determines that
Plaintiffs also fail to satisfy 28 U.S.C. § 1292(b)’s third element.
II.C. Plaintiffs’ Supplemental Authority
Finally, the Sixth Circuit’s recent decision in Milman v. Fieger & Fieger, P.C.,
___ F.4th ___, 2023 WL 387293 (6th Cir. Jan. 25, 2023), does not affect the Court’s
analysis under Section 1292(b). In Milman, the court reversed the dismissal of a
claim under the Family and Medical Leave Act. Id. at *1. Given this procedural
posture, the court had no occasion to conduct an analysis under Section 1292(b).
Although interpretation of the FMLA might lie “at the heart of th[at] case,” id. at □□□
the centrality of interpretation of Section 4517.59(A)(14) to Counts 1 and 2 says little
about an issue of consequence that might materially advance the termination of this
litigation.
CONCLUSION
For all these reasons, the Court DENIES Plaintiffs’ motion and declines to
certify its Opinion and Order dated December 5, 2022, for immediate appeal under
Rule 54(b) and under Section 1292(b).
SO ORDERED.
Dated: February 1, 2023
J.Philip Calabrese”
United States District Judge
Northern District of Ohio
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