Earl v. Boeing Co.

DAMONIE EARL, ET AL., Plaintiffs, v. THE BOEING COMPANY, ET AL., Defendants.

Civil Action No. 4:19-cv-507

United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

March 18, 2021

Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court are Boeing's Emergency Motion to Stay Pending Appellate Review (Dkt. #336) and Motion to Certify the Court's March 15, 2021 Order for Interlocutory Appeal Under 28 U.S.C. § 1292(b) (Dkt. #339). Having considered the motions and the relevant pleadings, the Court finds that they should be denied.

BACKGROUND

This case arises out of allegations made by Plaintiffs that Defendants The Boeing Company ("Boeing") and Southwest Airlines Co. ("Southwest") colluded to cover up fatal defects in Boeing's 737 MAX 8 aircraft and encourage public confidence to fly aboard these aircrafts while aware of the defects (Dkt. #165). Defendants deny these allegations (Dkts. #191-92).

On March 1, 2021, Plaintiffs filed their Motion to Compel Boeing to Produce Documents Under the Crime-Fraud Exception, requesting that the Court conduct an in camera review to determine if the crime-fraud exception applied to various documents over which Boeing asserts privilege (Dkt. #316 at pp. 4-5). On March 3, 2021, Boeing filed its response (Dkt. #320). The next day, the Court published a memorandum opinion and order finding Plaintiffs to have made a prima facie showing of the crime-fraud exception as to these documents and ordering Boeing to produce said documents to the Court for in camera review (Dkt. #321 at pp. 4-6).

On March 15, 2021, the Court published a memorandum opinion and order documenting its findings from the in camera review (Dkt. #335). First, the Court found that the documents under tabs 8-13 and 15-27 are not protected by attorney-client privilege or the work product doctrine (Dkt. #335 at pp. 3-7). Then the Court identified a number of documents protected by privilege but within the scope of the crime-fraud exception (Dkt. #335 at pp. 8-9). The Court ultimately ordered all nonprivileged documents and all materials falling within the scope of the crime-fraud exception produced to Plaintiffs' counsel (Dkt. #335 at pp. 10-11).

Boeing filed its Emergency Motion to Stay Pending Appellate Review (Dkt. #336) on March 15, 2021, and its Motion to Certify the Court's March 15, 2021 Order for Interlocutory Appeal Under 28 U.S.C. § 1292(b) (Dkt. #339) on March 16, 2021, both currently before the Court. On March 16, 2021, the Court took up the motions on an expedited basis and ordered Plaintiffs to respond (Dkt. #340). On March 17, 2021, Plaintiffs filed their response (Dkt. #346).

LEGAL STANDARD

I. Certification for Interlocutory Appeal

In the federal judicial system, courts of appeals can review district-court orders only when a decision becomes "final," which generally occurs "upon completion of the entire case." Ritzen Grp., Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582, 586 (2020); see United Disaster Response, LLC v. Omni Pinnacle, LLC, 511 F.3d 476, 482 (5th Cir. 2007) ("Under 28 U.S.C. § 1291, unless one of the limited exceptions to the final judgment rule applies, we can review only 'final decisions.'"). But in certain circumstances, Congress permits district judges to certify an issue forappellate review prior to a case's culmination. Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 (2017).

The applicable statute, 28 U.S.C. § 1292(b), reads, in relevant part:

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.

Disaggregated, the statutory requirements to certify an interlocutory order are threefold: "(1) a controlling question of law is involved, (2) there is substantial ground for difference of opinion about the question of law, and (3) immediate appeal will materially advance the ultimate termination of the litigation." Rico v. Flores, 481 F.3d 234, 238 (5th Cir. 2007). "All three of these criteria must be met for an order to properly be certified for interlocutory appeal." Crankshaw v. City of Elgin, No. 1:18-CV-75-RP, 2020 WL 1866884, at *1 (W.D. Tex. Apr. 14, 2020) (citing Clark-Dietz & Assocs.-Eng'rs v. Basic Constr. Co., 702 F.2d 67, 69 (5th Cir. 1983)); see Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000) ("The criteria are conjunctive, not disjunctive."). The party moving for certification bears the burden to demonstrate its necessity. Coates v. Brazoria Cnty., Tex., 919 F. Supp. 2d 863, 867 (S.D. Tex. 2013)

"[I]nterlocutory appeals are exceptional." Earl v. Boeing Co., No. 4:19-CV-00507, 2020 WL 4220887, at *2 (E.D. Tex. July 23, 2020) (quoting Clark-Dietz, 702 F.2d at 68). Section 1292(b) does not exist "to question the correctness of a district court's ruling or to obtain a second, more favorable opinion." Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 722 (N.D. Tex. 2006); German by German v. Fed. Home Loan Mortg. Corp., 896 F. Supp. 1385, 1398 (S.D.N.Y. 1995) ("[Section 1292(b)] is not intended as a vehicle to provide early review of difficult rulings in hard cases."). Construing § 1292(b) as anything other than a "narrow exception" would effectivelynullify the "[c]ongressional policy against piecemeal appeals." Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970). "The justification for immediate appeal must therefore be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009); Jud. Watch, Inc. v. Nat'l Energy Pol'y Dev. Grp., 233 F. Supp. 2d 16, 20 (D.D.C. 2002) ("A party seeking certification pursuant to § 1292(b) must meet a high standard to overcome the 'strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.'" (quoting United States v. Nixon, 418 U.S. 683, 690 (1974))).

The decision to certify an interlocutory appeal lies within the sound discretion of the district court. Richardson v. Univ. of Tex. Sys., No. 5:19-CV-271-XR, 2019 WL 5683470, at *1 (W.D. Tex. Oct. 31, 2019); Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 405 n.9 (2004) (Ginsburg, J., dissenting) ("[T]he decision whether to allow an [interlocutory] appeal lies in the first instance in the District Court's sound discretion."). District courts wield this authority precisely because Congress, in enacting § 1292(b), "chose to confer on [them] first line discretion to allow interlocutory appeals." Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 47 (1995); see In re Trump, 958 F.3d 274, 282 n.2 (4th Cir. 2020) (en banc) (detailing § 1292(b)'s legislative history), vacated as moot by Trump v. D.C., No. 20-331, 2021 WL 231542 (U.S. Jan. 25, 2021) (mem.). As such, even when the statutory criteria are met, district courts may nevertheless deny certification. SEC v. Sethi Petroleum, LLC, No. 4:15-CV-338, 2016 WL 4400064, at *2 (E.D. Tex. Aug. 18, 2016).

II. Stay Pending Appeal

"The authority to stay proceedings is 'incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, forcounsel, and for litigants.'" Huddleston v. FBI, No. 4:20-CV-447, 2021 WL 327510, at *1 (E.D. Tex. Feb. 1, 2021) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). The decision to stay a case is committed entirely to the district court's discretion. Weingarten Realty Inv'rs v. Miller, 661 F.3d 904, 910 (5th Cir. 2011). "Proper use of this authority 'calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.'" Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983) (quoting Landis, 299 U.S. at 254-55).

"To determine whether a discretionary stay is warranted, district courts consider the following four factors: (1) the strength of the stay applicant's showing of likelihood of success on the merits; (2) the irreparability of injury absent a stay; (3) the substantiality of injury to other interested parties if a stay issues; and (4) the public interest." Scrum All., Inc. v. Scrum, Inc., No. 4:20-CV-227, 2021 WL 720703, at *1 (E.D. Tex. Feb. 24, 2021) (citing Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020)); see Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016) (explaining that the first two factors are "the most critical"). "These traditional four factors 'must be fully applied except where there is a serious legal question involved and the balance of equities heavily favors a stay; in those situations, the movant only needs to present a substantial case on the merits.'" OrthoAccel Techs., Inc. v. Propel Orthodontics, LLC, No. 4:16-CV-00350-ALM, 2017 WL 3671862, at *2 (E.D. Tex. Apr. 28, 2017) (quoting Weingarten Realty Inv'rs, 661 F.3d at 910). At all times, the applicant for a stay "bears the burden of establishing its need." Clinton v. Jones, 520 U.S. 681, 708 (1997). "The movant must 'make out a clear case of hardship or inequity in being required to go forward.'" Nat'l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 575 (S.D. Tex. 2019) (quoting Landis, 299 U.S. at 254), rev'd on other grounds, 969 F.3d 546 (5th Cir. 2020).

ANALYSIS

I. Certification for Interlocutory Appeal

In the Motion, Boeing asserts that the Court's March 15 order satisfies § 1292's tripartite test for certification (Dkt. #339 at pp. 4-8). Plaintiffs disagree on all counts (Dkt. #346 at pp. 13-22). The Court finds Boeing's arguments fall woefully short of satisfying the applicable statutory requirements.

a. Controlling Question of Law

To be certifiable for interlocutory appeal, the Court's order must "involve[] a controlling...