UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

STANLEY D. JONES, )

)

Plaintiff, )

)

v. ) Cause No.: 3:14-CV-135

)

B & J ROCKET AMERICA, INC., )

)

Defendant. )

OPINION AND ORDER

This matter is before the court on the “Motion to Reconsider December 1, 2015 Opinion

and Order or, Alternatively, to Certify for Interlocutory Appeal” filed by Defendant B & J Rocket

America, Inc. (DE 29). Plaintiff Stanley Jones filed a brief in opposition to the motion (DE 33)

and B & J Rocket filed a reply (DE 36). For the reasons discussed below, the motion is DENIED.

A telephonic scheduling conference will be set in this case by separate docket entry.

BACKGROUND

Stanley Jones began working for Middlebury Enterprises, Inc., the predecessor of B & J

Rocket, in March of 1993 as a saw operator. Jones held various positions with the company,

including press operator, press operator supervisor, and machine maintenance, and ultimately

was promoted to plant manager. In 2009, B & J Rocket purchased Middlebury and retained the

latter’s employees, including Jones. On March 5, 2012, B & J Rocket hired a new plant manager

and Jones was demoted to assistant plant manager. Finally, on October 22, 2012, Jones was told

that his employment with B & J Rocket would be terminated as of December 31. He signed a

“retirement announcement” in mid-December and received a severance payment equal to three

month’s salary. Jones was 63 years old at the time. 
Jones filed a Charge of Discrimination with the EEOC on April 3, 2013, alleging that he

was terminated because of his age and his disability. After receiving a Notice of Right to Sue 1

letter, Jones filed this lawsuit, alleging in his Complaint that B & J Rocket discriminated against

him in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the

Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. Complaint, pp. 4-5. B & J Rocket

contends that Jones’ demotion and eventual termination (or “forced” retirement, but this

distinction is not relevant for present purposes) were not based on his age or disability at all, but

rather on the company’s conclusion that it needed to hire a new plant manager since Jones had

stated the planned to retire in a few years and because Jones’ work performance was not meeting

the company’s legitimate expectations.

B & J Rocket filed a motion for summary judgment on June 29, 2015 (DE 20), seeking

judgment in its favor as to both Jones’ age claim and disability claim. B & J Rocket argued that

1) Jones failed to file his charge of discrimination in a timely manner, and 2) Jones failed to

present sufficient evidence to establish a prima facie case of age or disability discrimination. On

December 1, 2015, this court entered an Opinion and Order granting B & J Rocket’s motion as to

Jones’ claims based on his demotion and denying the motion as to his claims based on his

termination. Opinion and Order (DE 25).

In its motion to reconsider, B & J Rocket states that “[i]n its Opinion and Order . . . the

 Jones had medical issues related to his legs throughout the time he was employed at B & 1

J (the result of wounds suffered during the Vietnam War), and often used a motorized scooter to

make it easier to move around at work. In 2010 Jones had a stent placed in his right leg and in

2011 he had bypass surgery on his left leg. 

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Court appears to have patently misunderstood B & J Rocket and, as a result, did not address two

legal arguments that were advanced by B & J Rocket in support of its Motion for Summary

Judgment.” Motion to Reconsider, p. 2. B & J Rocket elaborates as follows:

First, even if Bent Andersen was the decision-maker or had sufficient input with

respect to the decision to terminate Jones’ employment as assistant plant manager,

B & J Rocket explained that Bent Andersen’s comment alone does not directly

point to an unlawful discriminatory motive because it was not made around the

time of–and did not make any reference to–the termination of Jones’ employment

as assistant plant manager. . . . Second, B & J Rocket explained that Jones may

not use evidence of time-barred conduct to establish his prima facie case of

discrimination with respect to Jones’ termination as assistant plant manager.

Id., pp. 2-3. B & J Rocket maintains that the court should reexamine its December 1 order with

respect to these specific legal points and grant summary judgment in its entirety as to both of

Jones’ claims. In the alternative, B & J Rocket moves the court to certify this case for

interlocutory appeal to permit the company to present its arguments to the Seventh Circuit Court

of Appeals.

DISCUSSION

I. Procedural Issue.

As a threshold matter, B & J Rocket brought its present motion under Fed.R.Civ.P. 54(b).

Defendant’s Motion, p. 1. Jones contends that “[t]he Court’s December 1, 2015[,] opinion was

not a final judgment and is therefore not properly appealable under Rule 54(b).” Plaintiff’s

Response, p. 1. Jones maintains that the court’s order is not a “final” judgment “because any

order certified [for interlocutory appeal] under the rule must meet the finality requirements of 28

U.S.C. § 1291. . . . This Court should therefore deny Defendant’s motion under Rule 54(b)

because the Court’s December 1, 2015[, order] is not a final judgment and cannot properly be

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certified under Rule 54(b).” Id., pp. 1-2. B & J Rocket responds by arguing that Jones is

confusing Rule 54(b) with Rule 59(e) or, more specifically, that “Jones misapprehends the relief

requested by B & J Rocket and the federal rules governing motions to reconsider.” Defendant’s

Reply, p. 2. B & J Rocket argues that it “has requested the Court to reconsider–not enter final

judgment on–its Opinion and Order.” Id. The company states that “. . . Rule 54(b) . . . provides a

mechanism for a district court to reconsider its own interlocutory orders ‘at any time before the

entry of judgment adjudicating all the claims and all the parties’ rights and liabilities.’” Id., p. 3

(quoting Rule 54(b) and citing Sandifer v. U.S. Steel Corp., 2010 WL 61971 * 1 (N.D.Ind. Jan. 5,

2015)). In contrast, “‘Rule 59(e) does not apply until . . . a final judgment has been entered.’” Id.,

(quoting Livingston Downs Racing Ass’n, Inc. v. Jefferson Downs Corp., 259 F.Supp. 471, 475

(M.D.La. 2002)). . . . Rather, Rule 54(b) provides a district court with the inherent authority to

reconsider its own interlocutory orders or decisions before a final judgment has been entered.” Id.

(citing Powers v. USF Holland, Inc., 2015 WL 3905261 * 1 (N.D.Ind. June 25, 2015)).

Accordingly, argues B & J Rocket, “since a final judgment has not been entered in this action,

the Court should . . . reconsider and revise its Opinion and Order to grant B & J Rocket’s Motion

for Summary Judgment.” Id. 

B & J Rocket is correct that Fed.R.Civ.P. 54(b) applies in this instance, as opposed to

Jones’ contention that the present motion should “actually [be] made under Rule 59(e), rather

than Rule 54(b)[.]” Plaintiff’s Reply, p. 2. Rule 59 permits a party to seek a new trial, or request

that a court alter or amend a judgment rendered following trial. But of course, no such final

judgment has been entered in this case, and so Rule 59 is inapplicable. B & J Rocket properly

brought its present motion under Rule 54(b). This issue is essentially moot, however, since the

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Defendant’s motion fails anyway for the reasons discussed in this order.

The Sandifer case cited by B & J Rocket sets forth the standard of review for motions to

reconsider and requests for interlocutory appeal, and also explains the interplay between Rule

54(b) and 28 U.S.C. § 1292:

Federal Rule of Civil Procedure 54(b) provides that a court may alter or amend an

interlocutory order any time before entry of final judgment. See Moses H. Cone

Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d

765 (1983) (“[E]very order short of a final decree is subject to reopening at the

discretion of the district judge.”). Unlike a motion to reconsider a final judgment,

which must meet the requirements of Federal Rules of Civil Procedure 59 or 60,

“a motion to reconsider an interlocutory order may be entertained and granted as

justice requires.” Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1160

(N.D.Ind. 1995).

Reconsideration of an interlocutory order may be appropriate when the facts or

law on which the decision was based change significantly after issuance of the

order, or when the court has misunderstood a party, made a decision outside the

adversarial issues presented by the parties, or made an error not of reasoning but

of apprehension. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d

1185, 1191 (7th Cir. 1990). “These grounds represent extraordinary

circumstances, and the granting of a motion to reconsider is to be granted only in

such extraordinary circumstances . . . Indeed, the court’s orders are not mere first

drafts, subject to revision and reconsideration at a litigant’s pleasure.” United

States Securities and Exch. Comm’n v. National Presto Indus., Inc., . . . 2004 WL

1093390, at *2 (N.D.Ill. Apr. 28, 2004). Motions to reconsider serve a limited

function: “to correct manifest errors of law or fact or to present newly discovered

evidence.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264,

1269 (7th Cir. 1996).

Sandifer, 2010 WL 61971 at *1. As to interlocutory appeals, the court in Sandifer explained as

follows:

Interlocutory appeals are governed by 28 U.S.C. § 1292(b), which provides, in

pertinent part, that:

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

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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.

Certification under § 1292(b) requires four statutory criteria be met: (1) there must

be a question of law; (2) it must be controlling; (3) it must be contestable; and (4)

its resolution must promise to speed up the litigation. Ahrenholz v. Board of

Trustees of the Univ. of Illinois, 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in

original). “There is also a nonstatutory requirement: the petition must be filed in

the district court within a reasonable time after the order sought to be appealed.

Unless all these criteria are satisfied, the district court may not and should not

certify its order to [the appellate court] for an immediate appeal under section

1292(b).” Id. “Certification is the exception and not the rule.” In re Brand Name

Prescription Drugs Antitrust Litig., 878 F.Supp. 1078, 1081 (N.D.Ill.1995).

Id. at *2 (italics in original). It is clear then, and well-established, that district courts may

entertain motions to reconsider only in very limited circumstances and for very limited reasons.

One of those reasons is “when the court misunderstood a party” or “made an error not of

reasoning but of apprehension.” This is the basis for B & J Rocket’s present motion. The

company argues that this court “patently misunderstood B & J Rocket and, as a result, did not

address two legal arguments that were advanced by B & J Rocket in support of its motion for

summary judgment.” Motion to Reconsider, p. 2. But while B & J Rocket couches its argument

in this way, implying that the error in the court’s December 1 order was one of apprehension

(that is, a failure by the court to understand and address Defendant’s arguments), what the

company is really challenging, in fact, is the court’s reasoning and conclusions. The debate boils

down to this: B & J Rocket contends that the court failed to understand and address two of its

arguments in support of its motion for summary judgment, while Jones maintains (and the court

agrees) that the court did understand the arguments but rejected them. 

II. Consideration of Bent Andersen’s Alleged Comment.

B & J Rocket’s first argument is that the court erred in concluding that Bent Andersen’s

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alleged comment to Jones was evidence of discrimination under the direct method of proof. The 2

company contends, as it did in its original motion for summary judgment, that the age-related

comment that Andersen allegedly made to Jones cannot be used as direct evidence of

discrimination since Andersen did not make the decision to fire Jones, his alleged comment was

too remote in time (the alleged comment was made in February 2012, but Jones’ was not

terminated until December), and the comment was not made in reference to Jones’ termination,

but only his demotion. For these reasons, argues B & J Rocket, “Andersen’s alleged comment

was not causally related to the decision to terminate Jones[.]” Motion to Reconsider, p. 5. In

support of this argument, B & J Rocket cites and discusses the case of Fortier v. Ameritech

Mobile Communications, Inc., 161 F.3d 1106 (7th Cir. 1998). In Fortier, the plaintiff had been

demoted, allegedly due to a departmental restructuring within the company. Five months later,

the plaintiff was fired for alleged poor performance. The plaintiff claimed that at the time he was

demoted, his supervisor told him that she wanted a woman to handle the duties the plaintiff had

been handling. The plaintiff brought a Title VII gender discrimination claim (among others)

against Ameritech and cited his supervisor’s comment as direct evidence of that discrimination.

 Jones stated in his deposition that when he asked Andersen if it was true that the 2

company was replacing him as plant manager, Andersen responded by saying “Yes, we’re

replacing you because of your age and your health. But don’t worry. You’ll get to work until

you’re 66 because it’s going to take a long time to train this new guy, whoever we find.” Jones

Deposition, DE 23-2, Exh. 1, p. 36. B & J Rocket notes that in his charge of discrimination Jones

indicated that Andersen’s statement was something along the lines of “‘[b]ecause of your age and

health, and the fact that there is no one who can run this plant, we have decided to look for

someone you can train as your replacement when you retire. This will take quite some time

because there is a lot to learn.’” Defendant’s Motion to Reconsider, p. 5, n. 1 (quoting EEOC

Charge of Discrimination, DE 20-2, p. 41). B & J Rocket concedes that the exact wording of

Andersen’s alleged statement is not important; what is important, according to B & J Rocket, is

that “both versions specifically reference Jones’ replacement as plant manager and neither

version makes any reference to any termination of his employment.” Id. 

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The Seventh Circuit held that the supervisor’s comment did not constitute direct evidence of

discrimination, reasoning as follows:

[The supervisor’s] comment about wanting a woman in the . . . position was

related to an employment decision, but not to one that, on this record, was tied to

the ultimate termination decision. Therefore, this remark cannot constitute,

without more, direct evidence of discrimination.

Fortier, 161 F.3d at 1111-12 (italics in original). The Seventh Circuit concluded, based on this

reasoning (and on the specific factual circumstances of the case), that the supervisor’s remark

was not causally related to the plaintiff’s termination and so did not constitute direct evidence of

discriminatory motive. Id. B & J Rocket argues, then, that “like the two employment actions at

issue in Fortier . . . the two employment actions at issue in the present case were not causally

linked or related . . .” and so could not be considered when analyzing Jones’ claim under the

direct method of proof. Motion to Reconsider, pp. 7-8. B & J Rocket concludes by stating that

“since Bent Andersen’s alleged comment was unrelated to the termination of Jones’ employment

as assistant plant manager, the Seventh Circuit has made clear that his alleged ‘remarks unrelated

to the employment decision in question may not overcome summary judgment if they stand alone

as evidence of the employer’s discriminatory intention.’” Id., p. 11 (quoting Marshall v.

American Hosp. Ass’n, 157 F.3d 520, 526 (7th Cir. 1998)).

B & J Rocket presented these same arguments in its motion for summary judgment and

the court addressed them at some length. See Opinion and Order, DE 25, pp. 12-15. The

company’s attempt to rephrase or recharacterize its arguments does not change the outcome. In

its opinion, the court did not conclude that Andersen’s statement constituted direct evidence of

discriminatory intent. The court did conclude, however, that the alleged comment was relevant

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when considering the “mosaic” of evidence Jones presented in opposition to the motion for

summary judgment. Id., pp. 14-15. This conclusion was based on the particular facts of this

case–specifically on the chain of events that led up to Jones’ termination and the fact that the

alleged statement raised credibility issues the resolution of which are the sole province of the

jury. Id. The court concluded its discussion of this issue by stating that “[t]his is all true

regardless of whether the comment is characterized as ‘direct’ evidence or is considered part of

the broader ‘mosaic’ the Plaintiff is attempting to present.” Id., p. 15. Perhaps that sentence was

inartful, to the extent that B & J Rocket interpreted it to mean that the court was concluding that

Andersen’s alleged statement, standing alone, constituted direct evidence of discrimination. The

court tried to take pains to point out that the distinction between direct and circumstantial

evidence of discrimination is not always clear. “‘[D]irect” proof of discrimination is not limited

to near-admissions by the employer that its decisions were based on a proscribed criterion (e.g.,

‘You’re too old to work here.’), but also includes circumstantial evidence which suggests

discrimination through a longer chain of inferences. Luks [v. Baxter Healthcare Corp.], 467 F.3d

[1049,] 1053 [(7th Cir. 2006)] (emphasis supplied).’” Id., pp. 10-11(quoting Atanus v. Perry, 520

F.3d 662, 672 (7th Cir. 2008)). The court concluded that Andersen’s alleged statement was part

of the circumstantial evidence that Jones presented, i.e., that a jury could consider it as part of a

“chain of inferences.” The court also addressed B & J Rocket’s other arguments regarding

Andersen’s statement–that Andersen did not make the final decision to terminate Jones, that his

statement was too remote in time, and that it pertained only to Jones’ demotion and not to his

termination–and rejected those arguments also. Id., pp. 12-15. B & J Rocket’s attempt to reframe

this issue does not change the court’s analysis or conclusion. The court concluded only that the

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alleged comment could be considered, along with other evidence presented by Jones, when

assessing the sufficiency of Jones’ claims in the context of summary judgment. Id. The court

does not believe that it misunderstood B & J Rocket’s argument on this point and reaffirms the

reasoning, analysis, and conclusions set forth in its Opinion and Order of December 1, 2015. 

III. Consideration of Time-Barred Conduct Under the Indirect Method of Proof.

B & J Rocket’s second argument is that the court “patently misunderstood–and, as a

result, did not address–B & J Rocket’s argument that, under the indirect method of proof, Jones

may not use evidence of time-barred conduct to establish a prima facie case of discrimination[.]”

Defendant’s Motion to Reconsider, p. 12. Specifically, B & J Rocket argues that the court erred

in considering the fact that Jones was demoted when the court was analyzing the fourth prong of

Jones’ prima facie case of discrimination (i.e., whether a similarly situated younger employee

was treated more favorably). Here is how B & J Rocket explains it:

In its [December 1, 2015,] Opinion and Order, the court held that any evidence

that B & J Rocket allegedly discriminated against Jones when Mark Wallick was

hired as plant manager and Jones was demoted to assistant plant manager is timebarred. In fact, the Court observed that “it is clear (and maybe even undisputed)

that Jones’s EEOC charge was not filed within the time limits imposed by statute,

at least as they apply to the event of his demotion.” . . . Accordingly, the Court

held that “B & J [Rocket] is entitled to summary judgment in its favor as to any

claim asserted against it by Jones that is based on his demotion.” . . . In addition,

the Court held that “Jones’ demotion cannot serve as the foundation (i.e., adverse

employment action) for either his ADEA claim or his ADA claim.” . . . Later in its

Opinion and Order, however, the Court permitted Jones to use this time-barred

conduct to establish a prima facie case of discrimination with respect to the

termination of his employment as assistant plant manager.

Defendant’s Motion to Reconsider, pp. 14-15. B & J Rocket argues that this was error on the part

of this court since “evidence of time-barred conduct cannot be used to establish a prima facie

case of discrimination under the indirect method of proof.” Id., p. 15 (citing Turlington v. Atlanta

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Gas Light Co., 135 F.3d 1428 (11th Cir. 1998)). Again, the court concludes that it did not

misunderstand B & J Rocket’s argument. The court did indeed conclude that Jones’ demotion

“cannot serve as the foundation . . . for either his ADEA claim or his ADA claim” and, as a

result, granted B & J Rocket’s motion for summary judgment on that point. It is also true that the

court mentioned the undisputed fact that Jones was demoted when analyzing Jones’ evidence in

the context of the indirect method of proof. But while the court determined that Jones’ demotion

could not serve as the basis for a discrimination claim, the undisputed fact that he was demoted

to assistant plant manager at the same time his replacement, Mark Wallick, was hired as plant

manager was referenced merely to provide context to the court’s reasoning and conclusion

regarding the issue of the fourth prong of the indirect method of proof.

Simply put, B & J Rocket says that the court, after concluding that Jones’ demotion was

not actionable because it was time-barred, then went on to consider that time-barred conduct

when analyzing Jones’ claims under the indirect method of proof. If that were true, then B & J

Rocket’s point might be well taken, at least according to the Eleventh Circuit’s language in

Turlington. But that’s not what happened here. The confusion might stem from the following

sentence in this court’s earlier opinion:

Jones was B & J’s plant manager for several years until the day Wallick was hired

and Jones was demoted, either formally or informally, to assistant plant manager.

Opinion and Order, pp. 19-20. That is the only mention of Jones’ demotion in the portion of the

court’s opinion that B & J Rocket challenges. But mere reference to this fact is not the same as

considering it as evidence to support Jones’ burden under the indirect method of proof. So while

Jones’ demotion cannot be the basis of a discrimination claim, since it is time-barred for that

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purpose, the demotion was referenced because it was factually relevant to understanding the

court’s reasoning and conclusion on the issue of whether Wallick was a valid “comparator.” Not

only was Jones’ demotion not a determinative factor in the court’s analysis of this specific issue,

it was only tangentially related. So while the court referenced the demotion event in its

discussion of the “comparator” issue, it did not, as B & J Rocket claims, “permit[] Jones to use

this time-barred conduct to establish a prima facie case of discrimination with respect to the

termination of his employment as assistant plant manager.” Defendant’s Motion to Reconsider,

pp. 14-15. 

Furthermore, B & J Rocket’s argument on this point ignores another well-established

legal rule–one that this court addressed decades ago:

Several courts . . . hold that time-barred claims can be used as “relevant

background” to a timely-filed claim:

A discriminatory act which is not made the basis for a timely charge is the

legal equivalent of a discriminatory act which occurred before the statute

was passed. It may constitute relevant background evidence in a proceeding

in which the status of a current practice is at issue, but separately

considered, it is merely an unfortunate event in history which has no present

legal consequences.

United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52

L.Ed.2d 571 (1977) (emphasis supplied). See Valentino v. United States Postal

Service, 674 F.2d 56, 66 n. 11 (D.C.Cir. 1982) (“employment practices in the time

barred period may serve as relevant background evidence”); Hooker v. Tufts

Univ., 581 F.Supp. 98, 101 (D.Mass. 1983); James v. KID Broadcasting Corp.,

559 F.Supp. 1153, 1155 (D.Idaho 1983). Some courts speak of the time-barred

claims as useful in establishing a “continuing violation” of Title VII, see

Hazlewood School Dist. v. United States, 433 U.S. 299, 310 n. 15, 97 S.Ct. 2736,

2742 n. 15, 53 L.Ed.2d 768 (1977); Stewart v. CPC International, Inc., 679 F.2d

117, 120–21 (7th Cir.1982); Valentino; others speak of the evidence as assisting

in establishing a discriminatory intent or a pattern of discrimination, see Hooker;

Hunter v. Westinghouse Elec. Corp., 576 F.Supp. 704, 722 n. 16 (S.D.Ohio 1983);

Cormier v. P.P.G. Industries, Inc., 519 F.Supp. 211, 216 (W.D.La. 1981), aff’d,

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702 F.2d 567 (5th Cir. 1983).

The message of this line of cases is that time-barred incidents of discrimination

are not to be erased from a case because of their tardiness. Certainly, no relief can

be obtained for those acts; [and they] must be dismissed as [discrimination]

claims. However, those events may be used as background to [the plaintiff’s

timely] claim. . .; they may be probative evidence of [the employer’s] intent.

Abdulrahim v. Gene B. Glick Co., Inc., 612 F.Supp. 256, 260 (N.D.Ind. 1985); see also, Knight v.

Entertainment Publications, Inc., 1995 WL 583916, at *3 (N.D.Ill. Sept. 26, 1995) (“[t]imebarred incidents of . . . employment discrimination are not to be automatically erased from a case

because of their tardiness. Although no relief can be obtained for time-barred acts, those acts may

be used as background for a timely claim and may be probative evidence of an employer’s

intent.” (Citing Abdulrahim, 612 F.Supp. 256 and Greene v. Term City, Inc., 828 F.Supp. 584

(N.D.Ill. 1993).) This was the purpose for the court’s mention of Jones’ demotion in its previous

order. For these reasons, the court does not believe that it misunderstood B & J Rocket’s

argument and reaffirms the reasoning, analysis, and conclusions set forth in its Opinion and

Order of December 1, 2015. 

IV. Request for Interlocutory Appeal.

As the court noted above, “[c]ertification under § 1292(b) requires four statutory criteria

be met: (1) there must be a question of law; (2) it must be controlling; (3) it must be contestable;

and (4) its resolution must promise to speed up the litigation.” Ahrenholz v. Board of Trustees of

the Univ. of Illinois, 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in original). “Unless all these

criteria are satisfied, the district court may not and should not certify its order . . . for an

immediate appeal . . . .” Id. (emphasis in original). It is also important to note, as Jones points out

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in his response brief, that “‘Section 1292(b) was not intended to make denials of summary

judgment routinely appealable.’” Plaintiff’s Response (DE 33), p. 5 (quoting Ahrenholz, 219 F.3d

at 676).

The issues presented in B & J Rocket’s motion to reconsider do not meet any of these

criteria. Even though B & J Rocket characterizes its arguments as involving contestable

questions of law, the issues raised by the company’s motion and discussed in this order are

nothing more than the products of a “failure to communicate,” as it were. It may be that some of

the court’s language in its December 1 order caused confusion, or that B & J Rocket

misunderstood the court’s reasoning on certain points, or a bit of both. Be that as it may, the

court concludes that B & J Rocket’s motion fails to present any controlling, contestable questions

of law. The Seventh Circuit has admonished district courts to “remember that ‘question of law’

means an abstract legal issue rather than an issue of whether summary judgment should be

granted.” Ahrenholz, 219 F.3d at 677. No such abstract legal issues are present in this case that

would warrant certification of an interlocutory appeal. Moreover, interlocutory appeals are

generally disfavored in the Seventh Circuit, especially where, as here, the issues presented by the

movant “merely reargue[] the case for summary judgment.” Id. “‘Certification is the exception

and not the rule.’” Sandifer, 2010 WL 61971, at *3 (quoting In re Brand Name Prescription

Drugs Antitrust Litig., 878 F.Supp. 1078, 1081 (N.D.Ill. 1995)).

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CONCLUSION

For the reasons discussed above, the “Motion to Reconsider December 1, 2015 Opinion

and Order or, Alternatively, to Certify for Interlocutory Appeal” filed by Defendant B & J Rocket

America, Inc. (DE 29) is DENIED. A telephonic scheduling conference will be set in this case by

separate docket entry.

Date: May 17, 2016.

 /s/ William C. Lee 

William C. Lee, Judge

U.S. District Court

Northern District of Indiana

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