Barnes v. McQueen et al, No. 2:2014cv02636 - Document 145 (E.D. La. 2016)

Court Description: ORDER AND REASONS DENYING 143 MOTION for Certificate of Appealability filed by Southern Fidelity Insurance Company. Signed by Judge Susie Morgan on 7/21/16.(cg)

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Barnes v. McQueen et al Doc. 145 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OSH U A BARN ES, Plain tiff CIVIL ACTION VERSU S N O. 14 -2 6 3 6 KEITH MCQU EEN , ET AL., D e fe n d an ts SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is a m otion to am end and certify order for interlocutory review filed by Southern Fidelity Insurance Com pany (“SFIC”). 1 BACKGROU N D Plaintiff J oshua Barnes (“Barnes”) filed this action under 42 U.S.C. § 1983 and Louisiana state law on Novem ber 19, 20 14, against Defendants Keith McQueen (“McQueen”), Nicholas Knight (“Knight”), Rockwell McClellan (“McClellan”), Keith Bowm an (“Bowm an”), and the City of Slidell (“City”). 2 On J anuary 25, 20 16, Barnes filed a Secon d Supplem ental and Am en ded Com plaint nam ing Southern Fidelity Insurance Com pany (“SFIC”), McQueen’s hom eowner’s insurer, as a defendant. 3 On March 7, 20 16, the Court ruled on m otions to dism iss filed by McQueen, Knight, McClellan, Bowm an, and the City. 4 The Court set forth the factual background of this m atter in its orders on Defendants’ m otions to dism iss and adopts the factual background set forth in those orders. 5 1 R. Doc. 143. R. Doc. 1. The Slidell Police Departm ent was dism issed as a party on Novem ber 6, 20 15. See R. Doc. 77. 3 R. Doc. 90 at 3. 4 R. Docs. 110 , 111 (Orders); R. Docs. 97, 99 (Motions to dism iss). 5 See R. Docs. 110 , 111. 2 1 Dockets.Justia.com On March 14, 20 16, SFIC filed a m otion to dism iss for failure to state a claim upon which relief can be granted, arguing the policy issued to McQueen excludes coverage for the dam ages claim ed by Barnes. 6 The Court denied SFIC’s m otion to dism iss on J uly 13, 20 16, and determ ined that the SFIC policy issued to McQueen did not unam biguously preclude coverage of Barnes’ claim s against McQueen. 7 The Court thus concluded that SFIC has a duty to provide McQueen with a defense. 8 On J uly 19, 20 16, SFIC filed a m otion to am end and certify for interlocutory appeal the Court’s order denying SFIC’s m otion to dism iss. 9 LAW AN D AN ALYSIS There are three criteria set forth in 28 U.S.C. § 1292(b) that must be m et before the Court can properly certify an interlocutory order for appeal: (1) the order m ust involve a controlling question of law; (2) there m ust be a substantial ground for difference of opinion regarding the controlling question of law; and (3) an im m ediate appeal from the order m ay m aterially advance the ultim ate term ination of the litigation. 10 The m oving party bears the burden of establishing that interlocutory appeal is appropriate. 11 It is within the Court’s discretion to certify an order for interlocutory appeal under Section 6 R. Doc. 114. R. Doc. 137. 8 Id. 9 R. Doc. 143. 10 28 U.S.C. § 1292(b); Aparicio v. Sw an Lake, 643 F.2d 110 9, 1110 n.2 (5th Cir. 198 1). 11 U.S. ex rel. Branch Consultants, L.L.C. v. Allstate Ins. Co., 668 F. Supp. 2d 78 0 , 8 13 (E.D. La. 20 0 9). 7 2 1292(b). 12 Interlocutory appeals are “exceptional” and should not be granted “‘sim ply to determ ine the correctness’ of a ruling.”13 SFIC argues that it “poses a pure, abstract legal question: whether only factual allegations contained in a com plaint are considered in ruling on a Fed. R. Civ. P. 12(b)(6) [m ]otion.”14 As the Court explain ed in its order on SFIC’s m otion to dism iss, when deciding a m otion to dism iss, the Court accepts all well-pleaded facts as true and views those facts in the light m ost favorable to the plaintiff. 15 The Court m ay consider only the pleadings, the docum ents attached to or incorporated by reference in the plaintiff’s com plaint, the facts of which judicial notice m ay be taken, m atters of public record, 16 and docum ents attached to a m otion to dism iss “when the docum ents are referred to in the pleadings and are central to a plaintiff’s claim s.”17 The law with respect to what courts m ay consider when deciding a m otion to dism iss pursuant to Rule 12(b)(6) is settled. 18 There is no substantial ground for difference of opinion on this issue. “Difference of opinion refers to an unsettled state of 12 W aste Mgm t. of Louisian a, L.L.C. v. Parish, No. 13-6764, 20 14 WL 5393362, at *3 (E.D. La. Oct. 22, 20 14) (“This Court has the discretion to certify its Order and Reasons for interlocutory appeal under 28 U.S.C. § 1292(b).”); In re Chinese Manufactured Dry w all Products Liab. Litig., No. 0 9-4115, 20 12 WL 4928 869, at *7 (E.D. La. Oct. 16, 20 12) (sam e); Copelco Capital, Inc. v. Gautreaux, No. CIV. A. 99-850 , 1999 WL 729248 , at *1 (E.D. La. Sept. 16, 1999) (“The trial judge has substantial discretion in decidin g whether or not to certify questions for interlocutory appeal.”); Sw int v. Cham bers Cnty . Com m ’n, 514 U.S. 35, 47 (1995) (“Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals.”). 13 Gulf Coast Facilities Mgm t., LLC v. BG LN G Servs., LLC, 730 F. Supp. 2d 552, 565 (E.D. La. 20 10 ) (quotin g Clark– Dietz & Associates– Engineers, Inc. v . Basic Constr. Co., 70 2 F.2d 67, 67– 69 (5th Cir. 1983)). 14 R. Doc. 143-1 at 3. 15 W hitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 20 13), cert. denied, 134 S. Ct. 1935, 188 (20 14). 16 See U.S. ex rel. W illard v . Hum ana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 20 0 3); Lovelace v. Softw are Spectrum Inc., 78 F.3d 10 15, 10 17– 18 (5th Cir. 1996); Baker v . Putn al, 75 F.3d 190 , 196 (5th Cir. 1996). 17 Brand Coupon N etw ork, L.L.C. v . Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir. 20 14). 18 SFIC appears to challenge not a controlling question of law but the Court’s reading of the factual allegations in the com plaint. This does not satisfy the requirem ents of 28 U.S.C. § 1292(b). 3 law or judicial opinion, not m ere discontent by the appealing party.”19 The Court applied this settled rule of law. SFIC fails to m eet its burden of establishing that there is a substantial ground for difference of opinion regarding “whether only factual allegations contained in a com plaint are con sidered in ruling on a [Rule] 12(b)(6) [m ]otion.”20 Accordingly, SFIC has not m et its burden under 28 U.S.C. § 1292(b). CON CLU SION IT IS ORD ERED that SFIC’s m otion to am end and certify order for interlocutory review is D EN IED . N e w Orle a n s , Lo u is ian a, th is 2 1s t d ay o f Ju ly, 2 0 16 . _____________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 19 20 In re Babcock & W ilcox, No. 0 3-0 10 65, 20 0 4 WL 62628 8, at *2 (E.D. La. Mar. 29, 20 0 4). R. Doc. 143-1 at 3. 4

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