UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THAL FLAM WENDROW, et al.,

Plaintiffs,

Case No. 08-14324

v.

Hon. John Corbett O’Meara

MICHIGAN DEPARTMENT OF 

HUMAN SERVICES, et al.,

Defendants.

______________________________/

ORDER GRANTING PLAINTIFFS’ MOTION

TO CERTIFY JUDGMENT AS FINAL

Before the court is Plaintiffs’ motion to direct entry of final judgment as to certain claims

so that they may pursue an interlocutory appeal pursuant to Fed. R. Civ. P. 54(b). In orders

entered on March 20, 2011, and March 27, 2012, the court granted in part and denied in part

Defendants’ motions for summary judgment and reconsideration. The Walled Lake School

District Defendants and the Department of Human Services Defendants have taken an

interlocutory appeal as of right with respect to the court’s denial of qualified immunity on certain

claims. The court also dismissed some of Plaintiffs’ claims; others, not subject to qualified

immunity defenses, remain to be tried. In light of the complexity of this case, the court found

that judicial economy warranted the stay of the entire action pending the outcome of the appeal. 

See Docket No. 331. This decision arose out of a concern that the court and the parties could be

in a position of trying a complex and lengthy case twice.

This same concern underlies the court’s determination that certain of Plaintiffs’ claims

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are appropriately certified for appellate review at this time. Pursuant to Fed. R. Civ. P. 54(b),

“[w]hen an action presents more than one claim for relief . . . or when multiple parties are

involved, the court may direct the entry of a final judgment as to one or more, but fewer than all,

claims or parties only if the court expressly determines that there is no just reason for delay.” In

this case, the court dismissed all of Plaintiffs’ claims against Defendants Dean and Carley on

absolute and qualified immunity grounds, as well as Plaintiffs’ municipal liability claim under §

1983 against Oakland County. Plaintiffs seek Rule 54(b) certification so that they may

immediately appeal this determination. 

When determining whether Rule 54(b) certification is appropriate, the court considers the

following non-exhaustive list of factors: 

(1) the relationship between the adjudicated and unadjudicated

claims; (2) the possibility that the need for review might or might

not be mooted by future developments in the district court; (3) the

possibility that the reviewing court might be obliged to consider

the same issue a second time; (4) the presence or absence of a

claim or counterclaim which could result in set-off against the

judgment sought to be made final; (5) miscellaneous factors such

as delay, economic and solvency considerations, shortening the

time of trial; frivolity of competing claims, expense, and the like.

Corrosioneering, Inc. v. Thyssen Environ. Sys. Inc., 807 F.2d 1279, 1283 (6th Cir. 1986). In this

case, the Sixth Circuit will already be considering whether the court’s denial of qualified

immunity to certain defendants was appropriate; it would serve judicial economy for the

appellate court to consider whether the court properly granted immunity to Defendants Dean and

Carley at the same time. If certification is granted, the Sixth Circuit will review and consider

same factual record once. Further, obtaining review on all of the immunity issues at this time

will serve to clarify which defendants shall be subject to trial and avoid the potential of two

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lengthy, complex, and costly trials.

The need for the Sixth Circuit to review the court’s grant of immunity to Dean and

Carley will not be mooted by future developments in this court. However, as noted above, if

certification is not granted the Court of Appeals will need to consider Plaintiffs’ appeal of the

dismissal of their claims against Dean and Carley at a later date, reviewing the same factual

record a second time. Requiring Plaintiffs to wait until after the pending appeals are resolved,

then after trial is concluded, to appeal the dismissal of Dean and Carley will cause needless

delay. Indeed, courts have found that, where an appeal of the denial of qualified immunity is

already pending, an appeal of a decision granting qualified immunity as to other claims or

defendants is appropriately certified under Rule 54(b). See Marcilis v. Redford Twp., 2011 WL

284466 (E.D. Mich. Jan. 25, 2011); Mott v. Lucas, 2011 WL 3705131 (N.D. Ohio, Aug. 23,

2011); Abdulsalaam v. Franklin Bd. of Comm’rs, 2009 WL 2899886 (S.D. Ohio, Aug. 31,

2009). Under the circumstances of this case, the court finds no just reason to delay Plaintiffs’

appeal.

Plaintiffs’ municipal liability claim against Oakland County is intertwined with

Plaintiffs’ claims against Dean and Carley, as Plaintiff is seeking to impose municipal liability

based upon Dean and Carley’s conduct. Further, this claim is legally distinct from Plaintiffs’

remaining claims against Oakland County (a failure to accommodate Plaintiff AW’s disability

under the ADA and Persons with Disabilities Civil Rights Act). Accordingly, the court

determines that this claim should be certified as final under Rule 54(b) as well. If Plaintiffs’ §

1983 claim against Oakland County is not certified, the Sixth Circuit would be in a position to

review the factual and legal issues related to Dean and Carley’s conduct a second time, when

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Plaintiffs appeal the dismissal of the claim against Oakland County post-trial.

In their response brief, Defendants seek leave to appeal the court’s denial of David

Gorcyca’s motion for summary judgment on Plaintiffs’ defamation claim and the court’s denial

of Oakland County’s motion for summary judgment on Plaintiffs’ ADA and PWDCRA claims. 

These claims fall into a different category, however. Rule 54(b) “does not empower the district

court to ‘treat as “final” that which is not “final” within the meaning of [28 U.S.C.] § 1291.”

Corrosioneering, 807 F.2d at 1282 (citation omitted). The court’s denial of a motion for

summary judgment, in contrast to a grant of summary judgment dismissing a claim, is not

generally a “final” order under § 1291. See, e.g., Harrison v. Ash, 539 F.3d 510, 516 (6th Cir.

2008) (noting denial of qualified immunity is immediately appealable, unlike most denials of

summary judgment). The court is without authority to grant certification so that Defendants may

appeal the denial of their motions for summary judgment.

ORDER

IT IS HEREBY ORDERED that Plaintiffs’ motion to certify the court’s dismissal of their

claims against Defendants Dean and Carley and their § 1983 claim against Oakland County is

GRANTED.

IT IS FURTHER ORDERED that a final judgment in favor of Defendants Dean and

Carley, and in favor of Oakland County on Plaintiffs’ § 1983 claim, shall be entered pursuant to

Fed. R. Civ. P. 54(b). 

s/John Corbett O'Meara 

United States District Judge

Date: February 6, 2013

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I hereby certify that a copy of the foregoing document was served upon counsel of record

on this date, February 6, 2013, using the ECF system.

s/William Barkholz 

Case Manager

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