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UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DR. JENNY H. CONVISER and 

ASCEND CONSULTATION IN 

HEALTH CARE, LLC, 

 Plaintiffs, 

v. 

DEPAUL UNIVERSITY, 

 Defendant. 

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Case No.: 20-cv-03094 

Honorable Franklin U. Valderrama 

MEMORANDUM IN SUPPORT OF DEFENDANT’S OPPOSED MOTION FOR 

CERTIFICATION OF INTERLOCUTORY APPEAL 

AND TO STAY PROCEEDINGS 

 

 

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Defendant DePaul University, by counsel and pursuant to 28 U.S.C. § 1292(b), moves the 

Court for a certification under 28 U.S.C. § 1292(b) to permit an interlocutory appeal of the question 

whether independent contractors like Plaintiffs have statutory standing under Title IX of the 

Education Amendments Act of 1972. DePaul also moves the Court to stay discovery proceedings 

pending resolution of the appeal process. 

INTRODUCTION 

 Although many aspects of Plaintiffs’ story have changed throughout the various iterations 

of their Complaint, Jenny Conviser and her company have always alleged they are independent 

contractors. Yet, the Court has now reached two opposite conclusions about whether that 

relationship brings Plaintiffs within Title IX’s zone of interests. As is evident from the Court’s 

two thorough discussions of this subject, which now span dozens of pages, that question is a 

difficult one, and appellate authority is limited. Under the factors set forth in § 1292(b), as applied 

by the Seventh Circuit, the Court should certify that question for an immediate appeal. Ahrenholz 

v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000). 

First, the Order involves a “pure question of law”: do independent contractors have 

statutory standing under Title IX? The Seventh Circuit can readily resolve this question without 

reference to a factual record. Second, that question is “controlling” because its resolution 

determines whether Plaintiffs can state a Title IX claim. Third, there is “substantial ground for 

difference of opinion” on the question such that it is contestable. As this has Court acknowledged, 

whether Plaintiffs have statutory standing is a novel issue, and Title IX’s reach is the subject of a 

growing split among federal courts. Fourth, an immediate appeal will “materially advance” this 

litigation and promote the fair and efficient adjudication of the claims. Allowing the Seventh 

Circuit to make an early determination on the central issue of whether Plaintiffs are within Title 

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IX’s zone of interests may allow the parties and the Court to save time and resources that discovery, 

dispositive motions, and trial would otherwise consume. For these reasons, the Court should 

amend its January 9 Order or issue a new Order including a certification under 28 U.S.C. § 1292(b). 

And, in the interests of efficiency and judicial economy, the Court should stay all proceedings until 

the Seventh Circuit disposes of DePaul’s appeal. 

LEGAL STANDARD 

 Under 28 U.S.C. § 1292(b), a district court “shall” certify an interlocutory appeal: “(1) 

where there is a controlling question of law; (2) as to which there is substantial ground for 

difference of opinion; and (3) an immediate appeal from the order may materially advance the 

ultimate termination of the litigation.” Gamboa v. City of Chicago, 2004 WL 2877339, at *2 (N.D. 

Ill. Dec. 13, 2004) (certifying an interlocutory appeal because “the question concerns an 

interpretation of a statutory provision,” and that question had “not been settled and could ultimately 

overturn a jury verdict a year or more in the future”) (citing 28 U.S.C. § 1292(b)). When “the 

statutory criteria are met,” it is “the duty of the district court and of [the appellate court] as well to 

allow an immediate appeal to be taken[.]” Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 

674, 677 (7th Cir. 2000). 

 If the district court’s original order does not expressly say that it qualifies for an 

interlocutory appeal, the district court may either issue a new Order or amend its order to include 

the requisite language. Fed. R. App. P. 5(a)(3) (calling for the district court to “amend its order, 

either on its own or in response to a party’s motion, to include the required permission or 

statement”). 

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ARGUMENT 

I. The Dismissal Order Involves A Controlling Question Of Law 

First, § 1292(b) requires the presence of a “controlling question of law[.]” The Seventh 

Circuit has defined “‘question of law’ as used in section 1292(b)” to mean “a question of the 

meaning of a statutory or constitutional provision, regulation, or common law doctrine rather than 

to whether the party opposing summary judgment had raised a genuine issue of material fact.” 

Ahrenholz, 219 F.3d at 676. This phrase refers “to a ‘pure’ question of law rather than merely to 

an issue that might be free from factual contest.” Id. at 677. 

A question of law is “controlling” where “it is likely to affect the course of litigation and 

could save time and expense for the district court and the litigants.” Nat. Res. Def. Counsel v. Ill. 

Power Res., LLC, 2016 WL 9650981, at *4 (N.D. Ill. Nov. 2, 2016) (internal citations omitted). 

Because “it is never one hundred percent certain in advance that the resolution of a particular 

question will determine the outcome or even the future course of the litigation,” the Seventh Circuit 

has emphasized that courts must apply a “flexible” standard in determining whether a legal 

question is “controlling” for interlocutory appeal purposes. Johnson v. Burken, 930 F.2d 1202, 

1206 (7th Cir. 1991). Put another way, a question is controlling it if is “serious to the conduct of 

the litigation, either practically or legally.” Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d 

Cir. 1974), cert. denied, 419 U.S. 885 (1974). 

Here, whether independent contractors have statutory standing under Title IX is a 

controlling question of law. Specifically, this case presents the question whether independent 

contractors like Plaintiffs “fall[] within the class of plaintiffs whom Congress has authorized to 

sue.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014). Plaintiffs 

have statutory standing only if they “come[] within ‘the zone of interests’” of Title IX. Id. at 127. 

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This is a purely legal question that turns on Title IX’s text, purposes, and interpretive caselaw; the 

Seventh Circuit can easily decide this issue without an evidentiary record. 

Additionally, this question of law is controlling. It is undisputed that Plaintiffs are 

independent contractors. If such contractors do not have statutory standing, then Plaintiffs cannot 

state a cause of action under Title IX. Because the Court has now dismissed Plaintiffs’ state law 

claims with prejudice, statutory standing is not only “controlling,” but may resolve the entire 

lawsuit. If the Seventh Circuit finds that Plaintiffs lack statutory standing, that finding would result 

in dismissal of Plaintiffs’ Second Amended Complaint. Thus, the issue here is a controlling legal 

question suitable for interlocutory appeal. E.g., Shell v. Burlington N. Santa Fe Rwy. Co., 2018 

WL 6061473, at *4 (N.D. Ill. Nov. 20, 2018) (certifying an interlocutory appeal about the “reach 

of the ADA’s regarded-as provision” because its “resolution will be potentially dispositive of this 

case”). 

Finally, the “impact that the appeal will have on other cases is also a factor supporting a 

conclusion that the question is controlling[.]” APCC Servs., Inc. v. Sprint Commc’ns Co., LP., 297 

F. Supp. 2d 90, 96 (D.D.C. 2003) (internal citation omitted); see also Estate of Henkin v. Kuveyt 

Turk Katilim Bankasi, A.S., 2020 WL 6700121, at *2 (E.D.N.Y. Nov. 13, 2020) (noting that courts 

often consider whether a question “has the potential to impact a large number of other cases” as a 

factor in determining whether that question is “controlling”) (internal citation omitted); Resol. 

Trust Corp. v. Frates, 1994 WL 559323, at *1 (N.D. Okla. Apr. 12, 1994) (finding that a legal 

question was “controlling” and certifying appeal in part because the question presented was “one 

capable of repetition in many other cases pending in the Circuit”). The resolution of the question 

here—whether Title IX’s scope extends beyond the students and employees its drafters expressed 

a desire to protect—has an enormous potential impact for schools throughout this Circuit, both in 

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terms of litigation and in terms of schools’ internal practices. Title IX’s implementing regulations 

contain extensive procedures applicable to qualifying complaints, including a full hearing with 

cross-examination. See generally 34 C.F.R. Pt. 106. If Title IX protects independent contractors 

(including entities), the circumstances in which schools must follow those procedures will expand 

exponentially. Schools already encountering growing numbers of Title IX lawsuits from both 

complainants and respondents could face a new avenue of liability. Cf. Samantha Harris & KC 

Johnson, Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct 

Adjudications, 22 N.Y.U. J. Legis. & Pub. Pol’y 49, 66 (2019) (noting that federal reverse 

discrimination filings “jumped to twenty-five lawsuits in 2014; forty-five in 2015; forty-seven in 

2016; and seventy-eight in 2017”). Obtaining prompt and efficient appellate review of this discrete 

legal issue is therefore important for all educational institutions, which otherwise will be in limbo 

regarding their obligations under Title IX until after a trial in this matter, most likely in 2024. For 

this reason, too, certification of an interlocutory appeal is appropriate. 

The Supreme Court has instructed that the prerequisites for § 1292(b) review “are most 

likely to be satisfied” when a ruling “involves a new legal question or is of special consequence, 

and district courts should not hesitate to certify an interlocutory appeal in such cases.” Mohawk 

Indus. v. Carpenter, 558 U.S. 100, 110-11 (2009). This is one of those cases. 

II. There is Substantial Ground For Difference Of Opinion On Whether Plaintiffs 

Have Statutory Standing

Second, whether independent contractors have statutory standing is a question on which 

there is “substantial ground for difference of opinion” (i.e., it is “contestable”). 28 U.S.C. § 

1292(b); see also Ahrenholz, 219 F.3d at 675. 

Although different courts have applied different criteria when measuring “contestability,” 

two common themes emerge. First, an issue is contestable where courts “have followed different 

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paths and reached opposite conclusions” about the controlling legal question. Marshall v. Amsted 

Rail Co., 2011 WL 5513204, at *3 (S.D. Ill. Nov. 11, 2011). Put another way, if “the questions 

involved in [the] ruling were close” and “there was conflicting case law and strong arguments on 

both sides,” then “substantial ground for difference of opinion” exists. Panache Broadcasting of 

Pennsylvania, Inc. v. Richardson Elecs., Ltd., 1999 WL 1024560, at *5 (N.D. Ill. Oct. 29, 1999). 

Second, when the relevant issue is a “question[] of first impression, the application of these statutes 

to the facts alleged here is certainly contestable[.]” Boim v. Quranic Literacy Inst. & Holy Land 

Found. for Relief & Development, 291 F.3d 1000, 1007-1008 (7th Cir. 2002); see also Nat. Res. 

Def. Counsel, 2016 WL 9650981, at *4 (collecting cases and observing that “courts have also 

found an issue contestable based on its novelty”). 

Both factors are present here. First, the limited case law that addresses the scope of Title 

IX’s “zone of interests” is conflicting—indeed, there is no better proof of the potential for differing 

opinions than the Court’s own two opinions about this issue. (Compare ECF No. 64 at 10-30 with

ECF No. 37 at 8-21.) Initially, the Court held that “neither Jackson [v. Birhmingham Board of 

Education] nor the plain language of Title IX can be extended to provide statutory standing to nonstudents, non-employees who reported alleged sex discrimination against their patients.” (ECF 

No. 37 at 21.) In grappling with this same question a second time, however, the Court reversed 

course. (ECF No. 64 at 10-30.) This reversal alone demonstrates that reasonable jurists can differ 

on this issue. 

Notably, T.S. by & through T.M.S. v. Heart of CarDon, LLC, 43 F.4th 737 (7th Cir. 2022), 

on which the Court relied in reversing the course of its prior Order, was also decided on an 

interlocutory appeal following a motion for judgment on the pleadings. See T.S. by & through 

T.M.S. v. Heart of CarDon, LLC, 2021 WL 2946447, at *9-*10 (S.D. Ind. July 14, 2021) 

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(certifying order for interlocutory appeal). As explained in DePaul’s response to Plaintiffs’ Notice 

of Supplemental Authority (ECF No. 60), the Seventh Circuit’s opinion in T.S. does not support 

the conclusion that for which Plaintiffs offered it. That said, T.S. is similar to this case in that the 

question of statutory standing in both cases is “important, purely legal, and potentially dispositive 

(not only to this, but to many cases)” and “a decision reversing [the relevant order] will obviate 

the need for a trial[,]” such that interlocutory appeal is appropriate. 2021 WL 2946447, at *10. 

Further, in holding that Plaintiffs can sue under Title IX based solely on an independent 

contractor relationship, this Court’s more recent decision conflicts with the only Seventh Circuit 

opinion to have considered whether independent contractors can sue under Title IX. See Brown v. 

Illinois Dep’t of Human Servs., 717 F. App’x 623, 626 (7th Cir. 2018) (affirming dismissal of a 

vendor’s Title IX claim because “she is not an employee of the Department”). This Court’s more 

recent opinion also conflicts with the decisions on which the Court relied in its original Order 

granting DePaul’s motion to dismiss, all of which held that Title IX does not reach beyond those 

who seek an educational benefit. (ECF No. 37 at 19-21 (citing Doe v. Brown Univ., 270 F. Supp. 

3d 560, 560-61 (D.R.I. 2017), aff’d, 896 F.3d 127 (1st Cir. 2018) (holding that a Title IX plaintiff 

“must be a participant, or at least have the intention to participate, in the defendant’s educational 

program or activity”); Rossley v. Drake Univ., 336 F. Supp. 3d 959, 970 (S.D. Iowa 2018) (holding 

that “neither Jackson nor the plain language of Title IX can be extended to provide statutory 

standing to a non-student, non-employee who reported alleged sex discrimination against his adult 

son), aff’d, 958 F.3d 679 (8th Cir. 2020)).) This Court’s recent reversal of its prior opinion thus 

fuels a developing circuit split about whether Title IX imposes any statutory standing limitations. 

Compare Doe, 896 F.3d 127; Rossley, 958 F.3d 679; Brown, 717 F. App’x 623 with Snyder-Hill 

v. Ohio State Univ., 48 F.4th 686 (6th Cir. 2022). 

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Second, the narrower question of whether an independent contractor has Title IX statutory 

standing is a novel question of statutory interpretation. In fact, the Court determined in its original 

opinion that this “appears to be a case of first impression[.]” (ECF No. 37 at 1.) Other than the 

Seventh Circuit’s opinion in Brown and the Sixth Circuit’s passing reference to independent 

contractors in Snyder-Hill, authority on this question remains scarce. Even Plaintiffs’ counsel has 

agreed “there is little precedent for independent contractors in Title IX[.]” Patrick Sloan-Turner, 

Judge rules against DePaul’s motion to dismiss Title IX case, The DePaulia (2023), 

https://depauliaonline.com/61762/news/judge-rules-against-depauls-motion-to-dismiss-title-ixcase/. For this reason, too, the statutory standing question is “contestable” and therefore suitable 

for interlocutory appeal. 

III. Certification For Interlocutory Appeal Will Materially Advance The Litigation 

The final element under § 1292(b) is that an immediate appeal “may materially advance 

the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). If resolution of an interlocutory 

appeal could mean “the case will be over” without a trial, then this element is satisfied. Sakaogon 

Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 85 F.3d 656, 659 (7th Cir. 1996). 

As applicable here, an immediate interlocutory appeal to determine Plaintiffs’ statutory 

standing may materially advance the ultimate termination of this case because if the Seventh 

Circuit concludes that Plaintiffs may not sue DePaul under Title IX, that decision would “end the 

case right away, thereby obviating the need for discovery, dispositive motions, and a possible 

trial.” Dahlstrom v. Sun-Times Media, LLC, 39 F. Supp. 3d 998, 1002 (N.D. Ill. 2014); see also 

Isaacs v. Caterpillar, Inc., 765 F. Supp. 1359, 1375-76 (C.D. Ill. 1991) (certifying an interlocutory 

appeal where the “substantial burden of trial on the Court, a jury, the witnesses and the parties may 

well be unnecessary if Caterpillar prevails on appeal”). Even if the Seventh Circuit agrees with 

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Plaintiffs, knowing the results of the appeal will help the parties assess the value of the case. Cf. 

Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 536 (7th Cir. 2012) (noting that 

“uncertainty” about whether an asserted claim was viable “may delay settlement (almost all class 

actions are settled rather than tried), and by doing so further protract the litigation. That is enough 

to satisfy the ‘may materially advance’ clause of section 1292(b)”). 

In sum, because an interlocutory appeal has the potential to end this case, certification is 

likely to materially advance the termination of the litigation, and § 1292(b) is satisfied. 

IV. The Court Should Stay Proceedings Pending Resolution By The Seventh Circuit 

An application for appeal under § 1292(b) does not stay proceedings in the district court 

unless the district judge or the Court of Appeals orders a stay. See 28 U.S.C. § 1292(b). The 

power to stay proceedings is part of the Court’s inherent power to control its docket. E.g., 

Woodman’s Food Market, Inc. v. Clorox Co., 2015 WL 4858396, at *2 (W.D. Wis. Aug. 13, 2015) 

(granting stay of proceedings pending resolution of interlocutory appeal). In deciding whether to 

issue a stay, courts often consider: “(1) whether a stay will unduly prejudice or tactically 

disadvantage the non-moving party, (2) whether a stay will simplify the issues in question and 

streamline the trial, and (3) whether a stay will reduce the burden of litigation on the parties and 

on the court.” Tap Pharmaceutical Prods., Inc. v. Atrix Labs., Inc., 2004 WL 422697, at *1 (N.D. 

Ill. Mar. 3, 2004). Each of these factors weighs in favor of staying proceedings until either (1) the 

Seventh Circuit denies DePaul permission to appeal; or (2) the Seventh Circuit decides DePaul’s 

appeal on the merits. 

First, a stay will not prejudice Plaintiffs. This case is still at an early stage; no trial date 

has been set. Cf. Tel. Sci. Corp. v. Asset Recovery Sols., LLC, 2016 WL 47916, at *5 (N.D. Ill. 

Jan. 5, 2016) (granting a motion to stay pending resolution of relevant Supreme Court proceedings 

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in part because “this case is in its early stages”). Plaintiffs face no risk of harm that cannot be 

remedied by money damages. But, conversely, “both parties suffer harm by the burdens of 

potentially superfluous litigation.” Id.

Second, a stay will simplify the issues. As discussed above, if Plaintiffs do not have 

statutory standing, then no discovery will be necessary. Alternatively, if the Court does not stay 

this action pending resolution of an appeal, discovery and motions practice will consume 

significant resources of both the parties and the Court. And yet, all of that work would turn out to 

be unwarranted if the Seventh Circuit agrees with DePaul that Plaintiffs are not authorized to sue. 

Thus, it “would undermine the purpose of the interlocutory appeal to allow [Plaintiffs] to continue 

pursuing discovery here, before the Seventh Circuit confirms” whether Plaintiffs’ case can proceed 

at all. Pine Top Receivables of Illinois, LLC v. Banco De Seguros Del Estado, 2013 WL 3776971, 

at *1 (N.D. Ill. July 18, 2013) (staying proceedings pending interlocutory appeal under the Federal 

Arbitration Act because absent a stay, “we will have wasted the resources of both the parties and 

this court on unnecessary and invalid proceedings”). For similar reasons, courts in this Circuit 

(including this Court) routinely stay discovery proceedings pending resolution of interlocutory 

appeals. E.g., Bayer Healthcare, LLC v. Norbrook Labs., Ltd., 2010 WL 338089, at *5 (E.D. Wis. 

Jan. 20, 2010) (granting a stay pending interlocutory appeal “in the interest of judicial economy 

and to save unnecessary expense for the parties”); Merk v. Jewel Food Stores Div., Jewel Cos., 

1986 WL 8969, at *2 (N.D. Ill. Aug. 14, 1986) (granting stay pending interlocutory appeal). 

Similarly, a stay has the potential to reduce the burden on the parties and the Court. As the 

Seventh Circuit has noted, discovery is “burdensome,” and to “immerse the parties in the discovery 

swamp” that may ultimately prove unnecessary is an “irrevocable as well as unjustifiable harm to 

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the defendant that only an immediate appeal can avert.” In re Text Messaging Antitrust Litig., 630 

F.3d 622, 625-26 (7th Cir. 2010). 

In short, the Court should stay proceedings to realize the primary benefit of an interlocutory 

appeal: to preserve the Court’s and the parties’ resources. 

CONCLUSION 

 For the foregoing reasons, DePaul requests that the Court (i) certify an interlocutory appeal 

under § 1292(b) on the issue of Plaintiffs’ statutory standing; and (ii) stay proceedings in this Court 

while DePaul seeks permission from the Seventh Circuit to hear an appeal and, if an appeal is 

permitted, until the appeal is decided. 

Date: January 19, 2023 Respectfully submitted, 

 DePaul University 

 By: /s/ Christina Egan 

 

 Christina Egan 

 Amy Starinieri Gilbert 

 Melissa Marie Weiss 

 McGuireWoods LLP 

77 West Wacker Drive, Suite 4100 

 Chicago, Illinois 60601-1815 

 cegan@mcguirewoods.com 

agilbert@mcguirewoods.com 

mweiss@mcguirewoods.com 

 Telephone: 312.849.8100 

 Fax: 312.849.3690 

Heidi E. Siegmund (pro hac vice) 

McGuireWoods LLP 

Gateway Plaza 

800 East Canal Street 

Richmond, VA 23219-3916 

Telephone: 804.775.1049 

Fax: 804.698.2315 

hsiegmund@mcguirewoods.com 

 

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CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that on January 19, 2023, I electronically filed the foregoing 

Memorandum in Support of Defendant’s Opposed Motion for Certification of Interlocutory 

Appeal and to Stay Proceedings with the Clerk of the Court by using the CM/ECF system which 

will send notification of such filing to all counsel of record. 

/s/ Christina Egan 

 One of Defendant’s Attorneys 

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