Johnnie Brown v. Argosy Gaming Company , L.p.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1280
J OHNNIE B ROWN ,
Plaintiff-Appellant,
v.
A RGOSY G AMING C OMPANY , L.P.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 02 C 209—Sarah Evans Barker, Judge.
____________
A RGUED S EPTEMBER 15, 2003—D ECIDED M ARCH 8, 2004
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Before P OSNER , K ANNE , and R OVNER , Circuit Judges.
R OVNER , Circuit Judge. The plaintiff-appellant Johnnie
Brown filed suit in the district court of the Southern
District of Indiana, claiming that the defendant-appellant
Argosy Casino (“Casino”) acted negligently by refusing to
bar her husband from gambling at the Casino after Ms.
Brown requested that Argosy do so to prevent further
emotional and financial harm to the family. Brown initially
sought injunctive relief and damages and, a few days after
filing the complaint, she filed a motion to certify to the
Indiana Supreme Court the state law question raised by her
complaint. In response, Argosy filed a motion to dismiss and

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2 No. 03-1280
1 “The courts of appeals . . .shall have jurisdiction of appeals from
all final decisions of the district courts of the United States . . . .”
28 U.S.C. § 1291.
2 In its Entry Denying Plaintiff’s Motion to Certify Question of
State Law to the Indiana Supreme Court, Denying Plaintiff’s
Motion for Preliminary Injunction, and Granting Defendant’s
Motion to Dismiss (“District Court Order”), the district court judge
states very clearly three times that Argosy’s Motion to Dismiss is
granted without prejudice. Brown v. Argosy Casino, No.
02-CV-0209, 2003 WL 133266, at *1, 3 (S.D. Ind. Jan. 10, 2003).
In the Judgment signed by the district court judge on the same
date, however, she states that “Summary judgment is granted in
favor of Defendant Argosy Gaming Company, L.P.” (R. at 29). This
announcement of her judgment is clearly a misstatement as there
(continued...)
in opposition to the motion to certify. The district court
judge granted the motion to dismiss without prejudice and
denied Brown’s motion to certify and her motion for prelimi-
nary injunctive relief. Brown appeals only the denial of the
motion to certify the following question to the Indiana
Supreme Court:
Whether a wife has a cause of action against a casino
where a husband is a compulsive gambler, where the
husband has incurred substantial gambling losses,
which occurred after the wife made a request to the ca-
sino to bar her husband and which has resulted in
serious emotional and financial distress to the family.
This case presents a serious jurisdictional problem.
Although both the appellant and the appellee assert in their
jurisdictional statements that this court has jurisdiction of
the case pursuant to 28 U.S.C. § 1291 1 and that the entry of
judgment is a final order disposing of all of the claims of the
parties, we have reason to doubt that this is so. The district
court below granted Argosy’s motion to dismiss without
prejudice. 2 An order dismissing a suit without prejudice is

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No. 03-1280 3
(...continued)
were no motions for summary judgment ever filed in this case. We
assume the Judgment meant to declare that the Defendant Argosy
Gaming Company’s motion to dismiss was granted without
prejudice.
3 We note that Brown’s notice of appeal, filed in the district court
on February 3, 2003, does in fact state that she is appealing the
district court’s judgment “denying Plaintiff’s Motion to Certify
Question of State Law to the Indiana Supreme Court, denying
Plaintiff’s Motion for Preliminary Injunction and granting
(continued...)
ordinarily not a final, appealable order. See Muzikowski v.
Paramount Pictures Corp., SFX, 322 F.3d 918, 923 (7th Cir.
2003). Although there are exceptions to this rule when, for
example, there is no amendment that the plaintiff could
make to save the complaint, see id.; Strong v. David, 297
F.3d 646, 648 (7th Cir. 2002), Brown has not presented us
with any such argument and we are hesitant to declare that
there is nothing Brown can do to salvage her complaint
without first giving her the opportunity to argue the issue
one way or the other. Thus we are left with a non-final, non-
appealable judgment from the district court.
This conclusion, however, does not quite end the story. In
addition to granting the motion to dismiss without pre-
judice, the district court below also denied Brown’s motion
for preliminary injunctive relief. Pursuant to 28 U.S.C.
§ 1292(a)(1), the court of appeals has jurisdiction over
interlocutory orders of the district courts refusing an in-
junction and therefore we might have jurisdiction of this
appeal were Brown appealing the denial of her preliminary
injunction. Brown’s statement of the issue presented for
review in this court and the content of her brief on appeal,
however, make clear that she is appealing only the district
court’s denial of the motion to certify, and not the denial of
the preliminary injunction. 3 In addition, Brown’s jurisdic-

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4 No. 03-1280
(...continued)
Defendant’s Motion to Dismiss.” (R. at 30). Nevertheless, her brief
on appeal makes clear that she has abandoned all but the
judgment denying the motion to certify.
tional statement proclaims that this court has jurisdiction
pursuant to 28 U.S.C. § 1291 (jurisdiction over final orders)
and not § 1292 (jurisdiction over injunctive orders). It is
clear that Brown is not challenging the denial of her
preliminary injunction at all.
Consequently, we are left without an appeal of any final
order. It appears that Brown’s position is that the refusal to
certify a question to a state supreme court is in and of itself
an appealable order. But we do not think this can be so.
More than a decade ago, the Third Circuit considered this
matter of first impression and determined that a certifica-
tion order is patently interlocutory (and therefore unappeal-
able) as it is merely a preliminary step in an ongoing
matter. Nemours Found. v. Manganaro Corp., New Eng.,
878 F.2d 98, 100 (3d Cir. 1989); see also 17A Wright &
Miller, Federal Practice and Procedure ¶ 4248 (Supp. 2003).
In Nemours, the Third Circuit held that it did not have
jurisdiction to consider the appeal of a district court order
certifying a question to a state supreme court. Id. at 99.
Admittedly that case differs from the instant one in that the
district court granted the certification motion. Here,
certification has been denied. Intuitively, it is easier to
identify the interlocutory nature of an order granting a
motion to certify than one denying such a motion; once a
motion to certify is granted and the state supreme court
accepts the certification, the litigants will take whatever
answer they receive from a state supreme court back to the
federal district court to resolve the issues in the ongoing
federal dispute. Consequently an order to certify is not a
decision “that ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.”

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No. 03-1280 5
4 For this reason alone it is somewhat odd to have an appeal of a
motion to certify a question to a state supreme court without an
appeal of the underlying motion to dismiss or denial of injunctive
relief. Certification is meaningless without a viable cause of action
in which to use the answer received from the state supreme court.
Catlin v. United States, 324 U.S. 229, 233 (1945). To the
contrary, it is one that merely gives pause to the ongoing
proceedings to resolve one issue in a larger, ongoing dis-
pute—precisely the definition of an interlocutory order.
Furthermore, as the Third Circuit noted, certification is
not among the statutory exceptions making interlocutory
orders appealable in 28 U.S.C. § 1292. Nemours Found., 878
F.2d at 100. Nor does it fall within the “collateral order”
exception first articulated in Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546-47 (1949) and expounded
upon in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978). To fall within that exception, “the order must
conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the
action, and be effectively unreviewable on appeal from a
final judgment.” Coopers & Lybrand, 437 U.S. at 467.
Like the certification order in Nemours, the order denying
certification in this case does not conclusively determine the
disputed question that brought these parties before the
district court—that is whether Argosy acted negligently by
refusing to bar Brown’s husband from gambling at the
Casino. Nor does it resolve an important issue completely
separate from the merits of the action. As the Nemours
court concluded, the decision to grant or deny certification
necessarily embroils a district court in some determination
of the merits of the dispute. 4 Nemours Found., 878 F.2d at
100. The court must determine whether the issue is one of
first impression, whether there is uncertainty in the law of
the state, whether it can accurately predict what the state

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6 No. 03-1280
supreme court might do, whether resolution of the question
will dispose of the case on the merits, and whether the state
supreme court will consider the question to be important to
the growth of the state’s jurisprudence. See State Farm
Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 671-72 (7th Cir.
2001). All of these inquiries require some level of assess-
ment of the merits of the claim. For example, in this case,
the district court, in evaluating the propriety of certifica-
tion, determined that Brown’s reliance on dram shop
liability cases was too great a leap to justify imposing on
the scarce resources of the Indiana Supreme Court. Brown,
2003 WL 133266, at *2, n.1. It also noted its agreement
with another district court’s determination that the Indiana
courts have never recognized a common law duty to evict
compulsive gamblers. Id.
The certification order will be effectively reviewable when
and if the district court issues a final order on the motion to
dismiss. Requiring litigants to appeal their claims as a
package prevents “the debilitating effect on judicial admin-
istration caused by piecemeal appellate disposition of what
is, in practical consequence, but a single controversy.” Eisen
v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). The
litigant whose motion to certify has been denied may appeal
the denial of the motion along with the remainder of the
final order or may, in its initial brief on appeal, ask this
court directly to certify the question pursuant to Rule 52 of
the Rules of the United States Court of Appeals for the
Seventh Circuit. Without a final order or an order that falls
within one of the exceptions to the jurisdictional bar on
interlocutory orders, however, our hands are tied.
For this reason we D ISMISS the appeal for lack of jurisdic-
tion.

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No. 03-1280 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-8-04

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