UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DOUGLAS W. STOCKWELL and 

INTERNATIONAL UNION OF 

OPERATING ENGINEERS LOCAL 324, 

 Plaintiffs, 

v. Civil Case No. 15-11609 

 Honorable Linda V. Parker 

JOHN M. HAMILTON and 

WILLIAM B. ROUGH, 

 Defendants. 

____________________________/ 

OPINION AND ORDER DENYING DEFENDANT JOHN M. HAMILTON’S 

MOTION FOR CERTIFICATION TO FILE INTERLOCUTORY APPEAL 

UNDER 28 U.S.C. § 1292(b) 

 On May 5, 2015, Plaintiffs initiated this action against Defendants pursuant 

to the Employee Retirement Income Security Act of 1974 (“ERISA”). Plaintiffs 

allege that Defendants breached their fiduciary duties while acting as officers and 

employees of the International Union of Operating Engineers Local 324 (“Union”), 

in violation of Sections 404 and 406 of ERISA. Defendant John M. Hamilton 

(“Hamilton”) filed a motion to dismiss on July 29, 2015, arguing that Plaintiffs’ 

claims are barred by ERISA’s statute of limitations, 29 U.S.C. § 1113. In an 

Opinion and Order entered February 16, 2016, this Court denied Hamilton’s 

motion. Hamilton now asks the Court to certify its decision for interlocutory 

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appeal pursuant to 28 U.S.C. § 1292(b). (ECF No. 54.) Defendant William B. 

Rough filed a notice of concurrence in Hamilton’s request on March 11, 2016. 

(ECF No. 57.) Hamilton’s motion has been fully briefed. (ECF Nos. 59, 61.) 

 A district court has the discretion to grant a party permission to appeal a 

non-final order “if: (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.” In re City of Memphis, 293 F.3d 245, 250 (6th Cir. 

2002) (citing 28 U.S.C. § 1292(b)). Contrary to Hamilton’s assertion, these are not 

factors courts weigh to assess whether certification is appropriate. (See ECF No. 

61 at Pg ID 709.) Instead, as the Sixth Circuit’s use of the conjunctive “and” 

reflects, all three requirements must be satisfied before the court may consider 

certifying a decision for interlocutory appeal. See Couch v. Telescope, Inc., 611 

F.3d 629, 633 (9th Cir. 2010); Arenholz v. Bd. of Trustees of Univ. of Illinois, 219 

F.3d 674, 675-76 (7th Cir. 2000). The Sixth Circuit Court of Appeals has advised 

district courts that interlocutory review should be “granted sparingly and only in 

exceptional cases.”1

 In re City of Memphis, 293 F.3d at 350. 

 

1 Hamilton notes that, despite the Sixth Circuit’s warning that requests for 

interlocutory appeal should be “granted sparingly and only in exceptional cases,” a 

study concluded that the Sixth Circuit granted 72% of the § 1292 petitions filed 

between 2008 and 2010. (ECF No. 54-1 at Pg ID 566 n. 1, citing Bruce Khula, 

Can We Appeal that Now? Discretionary Interlocutory Appeals at the Sixth 

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 A decision “involves a controlling question of law” if “resolution of the 

issue on appeal could materially affect the outcome of litigation in the district 

court.” In re Baker & Getty Fin. Services, Inc., 954 F.2d 1169, 1172 n.8 (6th Cir. 

1992). Sixth Circuit law establishes that “ ‘substantial grounds for difference of 

opinion’ exist only when there is conflicting authority on an issue.” Serrano v. 

Cintas Corp., Nos. 04-40132, 06-12311, 2010 WL 940164, at *3 (E.D. Mich. Mar. 

10, 2010) (unpublished) (citing In re City of Memphis, 293 F.3d at 350-51). 

District courts in this Circuit have held that this occurs where: 

“(1) the question is difficult, novel and either a question on which 

there is little precedent or one whose correct resolution is not 

substantially guided by previous decisions; (2) the question is difficult 

and of first impression; (3) a difference of opinion exists within the 

controlling circuit; or (4) the circuits are split on the question.” 

In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (quoting City of Dearborn 

v. Comcast of Mich. III, Inc., No. 08-10156, 2008 WL 5084203, at *3 (E.D. Mich. 

Nov. 24, 2008) (unpublished)). One district court found certification appropriate 

where the issue “is important, complex, and merits clarification by the Sixth 

Circuit,” as a result of intervening Supreme Court and Sixth Circuit precedent 

undermining an earlier decision by the Sixth Circuit. Phipps v. Wal-Mart Stores, 

 

Circuit, Lexology (May 4, 2012). As the study reflects, however, few 

interlocutory appeals are brought to the Sixth Circuit (37 in 2011, 2010, and 2008, 

and 35 in 2009), and not all of these appeals are § 1292(b) appeals. Id. This 

suggests that the district courts in fact are heeding the Sixth Circuit’s guidance for 

granting requests for § 1292(b) interlocutory appeal. 

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Inc., No. 12-cv-1009, 2013 WL 2897961, at *4 (M.D. Tenn. June 13, 2013) 

(unpublished). 

 Hamilton seeks an interlocutory appeal with respect to the Court’s rejection 

of his argument that the knowledge of other Union trustees must be imputed to 

Plaintiffs to render their claims untimely. This Court construed the “actual 

knowledge” requirement of § 1113 as requiring the named plaintiff to have had 

specific knowledge of the actual breach of duty upon which he or she sues. (ECF 

No. 50 at Pg ID 484-85.) In other words, the Court held “that only the actual 

knowledge of Plaintiffs is relevant to determine when ERISA’s statute of 

limitations begins to run.” (Id. at Pg ID 485.) 

The Court did not find this issue complex or difficult to resolve, nor is it 

“novel” or one “on which there is little precedent.” See Miedzianowski, 735 F.3d 

at 384; Phipps, 2013 WL 2897961, at *4. The Court’s construction was derived 

easily from the plain language of the statute and Congress’ evident desire to not let 

“ ‘those who violate ERISA fiduciary trust . . . find refuge in a time bar.’ ” (ECF 

No. 50 at Pg ID 483, quoting Rogers v. Millan, No. 89-3707, 1990 WL 61120, at 

*4 (6th Cir. 1990) (unpublished) (quoting Brock v. Nellis, 809 F.2d 753, 755 (11th 

Cir. 1987)).) As set forth in the Court’s February 16, 2016 decision, a number of 

courts have considered the issue and reached the same conclusion as this Court. 

(ECF No. 50 at Pg ID 483-84.) Hamilton has cited one decision in which the court 

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reached a contrary decision: New Orleans Employers International 

Longshoremen’s Association, AFL-CIO Fund v. Mercer Investment Consultants, 

635 F. Supp. 2d 1351, 1379-80 (N.D. Ga. 2009) (“Mercer”). But as the District 

Court for the Northern District of Georgia recognized in Mercer, and as this Court 

found, the decision is an outlier. Moreover, this conflicting decision does not 

make for “a difference of opinion . . . within the controlling circuit” or a circuitsplit on the question. In re Miedzianowski, 735 F.3d at 384. 

 For these reasons, this Court is not of the opinion that its decision denying 

Hamilon’s motion to dismiss “involves a controlling question of law as to which 

there is substantial ground for difference of opinion . . ..” See 28 U.S.C. § 1292. 

 Accordingly, 

IT IS ORDERED that Defendant John M. Hamilton’s Motion for 

Certification to File Interlocutory Appeal under 28 U.S.C. § 1292(b) (ECF No. 54) 

is DENIED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: June 23, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, June 23, 2016, by electronic and/or U.S. 

First Class mail. 

 s/ Shawna Burns on behalf of Richard Loury 

 Case Manager 

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