Cummins v. EG & G SEALOL, INC.

• Decision Date: 14 October 1988
• Docket Number: Civ. A. No. 87-0114 L.
• Parties: James J. CUMMINS, Plaintiff, v. EG & G SEALOL, INC., Defendant.
• Court: U.S. District Court — District of Rhode Island

697 F. Supp. 64

James J. CUMMINS, Plaintiff, v. EG & G SEALOL, INC., Defendant.

Civ. A. No. 87-0114 L.

United States District Court, D. Rhode Island.

October 14, 1988.

A. Lauriston Parks and Raymond A. Marcaccio, Providence, R.I., for plaintiff.

David Rapaport, Boston, Mass., Frederick Cass, Providence, R.I., for defendant.

OPINION AND ORDER

LAGUEUX, District Judge.

This matter is presently before the Court on defendant EG & G Sealol, Inc.'s ("Sealol") motion to amend an interlocutory order so as to certify it for immediate appellate review pursuant to 28 U.S.C. § 1292(b).

Plaintiff James J. Cummins ("Cummins"), a former Sealol employee, originally instituted this action for wrongful termination, claiming age discrimination. Recently, Cummins sought leave to amend his complaint to include a state common law tort claim alleging retaliatory discharge by Sealol for Cummins's refusal to participate in allegedly illegal conduct and for complaining of such conduct to his superiors. Though it is not certain that Rhode Island recognizes a tort cause of action for retaliatory discharge of an employee-at-will for whistleblowing, this Court granted Cummins's motion to amend his complaint. 690 F.Supp. 134 (D.R.I.1988). Sealol now seeks immediate review of this Court's decision and requests certification of the order to the United States Court of Appeals for the First Circuit.

The issue here is whether a district court should grant § 1292(b) certification of an interlocutory order concerning only one count in a two count case, where that order concerns a question of state law that will likely be certified to the state supreme court for clarification. This Court holds that the extraordinary procedure of § 1292(b) certification is improper in the present case for three reasons. First, the instant matter is not the type of complex and prolonged litigation that would justify § 1292(b) review. Second, in a relatively simple multi-count case, certification of an order that does not affect all of the claims is improper. Third, even were this a single count action, pretrial certification of a disputed state law issue is inappropriate when it is likely that the issue, if it is not rendered moot, will be certified to the state supreme court for consideration. For these reasons Sealol's motion to amend the order to include a § 1292(b) certification is denied.

BACKGROUND

Sealol employed Cummins from February of 1982 until it terminated his employment effective January 27, 1986. At the time of his discharge, Cummins was the Director of Business Development for Sealol. On March 2, 1987, having exhausted his administrative remedies, Cummins filed a single count complaint in this Court alleging that Sealol had intentionally discriminated against him because of his age. In response, Sealol filed an answer denying Cummins's allegation. In essence Sealol claimed that it discharged Cummins for reasons other than age.

On March 30, 1988, after months of discovery, Cummins filed a motion to amend his complaint. Cummins sought to add a second count claiming that he had been wrongfully terminated for refusing to engage in illegal conduct and for whistleblowing. Cummins maintains that Rhode Island recognizes a cause of action, sounding in tort, for retaliatory discharge. This motion was filed pursuant to Fed.R.Civ.P. 15(a), and federal jurisdiction rests on the doctrine of pendent jurisdiction.

In his amended complaint, Cummins reavers his cause of action for age discrimination in Count I. In Count II, Cummins alleges that in June of 1983 he became aware that Sealol was using inflated prices on certain defense contracts which were for the production of equipment. Cummins claims that he was fired, either in whole or in part, because he criticized Sealol's purportedly illegal pricing practices and refused to participate in conduct that would perpetuate them. Maintaining that termination for this reason is "contrary to the public policy of the United States and the State of Rhode Island," Cummins claims that he has a cause of action for wrongful discharge under Rhode Island state law.

On April 13, 1988, Sealol filed an opposition to Cummins's motion to amend. Sealol earnestly contended that Rhode Island does not recognize a common law action for retaliatory discharge. This Court then heard oral argument and subsequently took the matter under advisement. By an Opinion and Order dated June 30, 1988, 690 F.Supp. 134, this Court held that while it is a close question of law, Rhode Island does implicitly recognize an action sounding in tort for retaliatory discharge. Therefore, Cummins's motion to amend was granted.

Subsequently, on August 3, 1988, Sealol filed a motion to amend the June 30, interlocutory order to include a statement certifying the order for prompt appellate review pursuant to § 1292(b). In essence, Sealol seeks to have this Court's determination that Rhode Island recognizes the tort of retaliatory discharge overturned immediately through an interlocutory appeal. Section 1292(b), which governs permissive interlocutory appeals, requires that a district judge certify an order for appellate consideration before a court of appeals will determine whether to review the order.¹

Cummins filed an objection to Sealol's motion to amend. On August 26, 1988, this Court heard oral argument on the motion and took the matter under advisement. It is now in order for decision.

DISCUSSION

Certification for appellate review of an interlocutory order pursuant to § 1292(b) is to be granted only in very rare cases. Generally, the federal courts strictly adhere to the final judgment rule under which only final resolutions of litigation are appealable. Section 1292(b) provides an exception to the rule but sets a stringent, three-prong test to be satisfied before permitting interlocutory appeals. Sealol's motion to amend fails for several reasons under § 1292(b) analysis. First, this case is not the type of protracted litigation that justifies piecemeal appeals. Second, because Sealol is seeking review of an order affecting only one count of a two count complaint in this relatively simple case, certification would not "materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Finally, since the dispute concerns an issue of state law, § 1292(b) certification is improper.

As noted, the interlocutory decision that Sealol seeks to have certified for immediate review, is the grant of Cummins's motion to amend his complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. For all practical purposes, Sealol's opposition to Cummins's motion to amend is equivalent to a motion to dismiss Count II for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). While this Court might simply note that Rule 15(a) motions are liberally granted and thereby dispose of Sealol's certification motion, the sensible course is to treat Sealol's § 1292(b) request as though it concerned a motion to dismiss, and thus meet the certification issue head-on.

A. Legal Landscape

Generally, federal law abhors piecemeal appeals disputing interlocutory district court orders. Therefore, the federal courts adhere to the final judgment rule contained in 28 U.S.C. § 1291. However, three major statutory exceptions to the final judgment rule exist. One of these is § 1292(b) which grants broad discretion to both district court and appellate court judges. Designed to ameliorate some of the hardship occasionally engendered by the final judgment rule, § 1292(b) has a three-pronged test that those seeking certification must meet. Of particular importance in this case is the prong that demands that an interlocutory appeal materially advance the ultimate termination of the litigation.

The final judgment rule is a doctrine under which appeals are allowed only after a trial court has resolved all issues involved in a given case.

An often quoted definition of a final judgment is an order that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). The important distinction to be drawn is between an order that is final as to the particular issue at hand and one that concludes the litigation on the merits. The former is interlocutory and not subject to an immediate appeal; it may be reviewed only after the entire lawsuit is concluded.

J. Friedenthal, M. Kane, and A. Miller, Civil Procedure, 580 (1985) (footnotes omitted) (hereinafter "Civil Procedure"). The final judgment rule is a type of house-keeping measure that determines when an interlocutory order may be reviewed. Thus, interlocutory orders are ultimately reviewable, but not immediately appealable. Id.

The rationale supporting the final judgment rule is grounded in a desire to achieve judicial economy and efficiency. Id. at 581. The First Circuit has discussed the reasoning underlying the rule as follows:

Perhaps there is always some hardship caused by the application of the "final decision" rule. Yet the rule is beneficial in most applications, because piecemeal appeals would result in even greater hardships and tremendous additional burdens on the courts and litigants which would follow from allowing appeals from interlocutory orders on issues that might later become moot.

In Re Heddendorf, 263 F.2d 887, 889 (1st Cir.1959). Moreover, by "avoiding interlocutory appeals, the trial process may proceed more rapidly, for it will not have to be stalled while waiting for an appellate ruling on some point." Civil Procedure, supra at 581.

The Supreme Court has recognized two non-statutory exceptions to the final judgment rule. The first is the collateral order doctrine which permits interlocutory review of trial court orders that determine matters collateral to the rights underlying an action, "when they have a final and irreparable effect on the...