In In re Nicholas Paul Somberg, No. 22-0101 (6th Cir. Apr. 21, 2022), the Sixth Circuit in a published but unsigned order denied a certified appeal of denial of summary judgment under 28 U.S.C. § 1292(b). Despite that the district court certified the appeal and defendant did not oppose it, the panel holds that the appeal would not “materially advance the ultimate termination of the litigation.”
“[Plaintiff] Somberg is a Michigan attorney. In May 2020, while appearing by video in state court, he took a screenshot of the hearing. He posted the picture on Facebook. The county prosecutor’s office sought contempt charges, arguing his conduct violated court restrictions on recording or broadcasting proceedings.” After the contempt charge was dismissed, he filed an action “in federal court against the prosecutor, arguing the recording and broadcasting policy violates the First and Fourteenth Amendments.”
Plaintiff moved for summary judgment. The district court denied the motion, holding “that the First Amendment does not protect the right to record publicly livestreamed proceedings,” but “declined to dismiss the case because the prosecutor had not filed a cross-motion for summary judgment.” Plaintiff then “asked the district court to certify its summary judgment denial for interlocutory appeal under 28 U.S.C. § 1292(b).” The defendant did not oppose the motion and the district court granted certification.
The Sixth Circuit denies the appeal. “Interlocutory review would forestall little here. Somberg acknowledges that his case does not turn on any disputes of fact, which means that there is no trial to avoid. The most likely next step, as we see it, would be for the prosecutor’s office to move for summary judgment. The district court’s conclusion that Somberg’s summary judgment motion failed as a matter of law raises the possibility that it will be amenable to a motion cutting the other way. Right or wrong about that possibility, there is plenty of reason to think that the case could proceed to final judgment quickly.”
The district court took its cue from “cases suggesting that when a lawsuit will proceed ‘in substantially the same manner regardless’ of what we say on appeal, it does not warrant interlocutory review. In re City of Memphis, 293 F.3d [345, 351 (6th Cir. 2002)]. The court took that statement to mean that an appeal materially advances litigation if it affects how the litigation proceeds. But that seems to be the flipside of Memphis, not a restatement of it. No doubt, an immediate appeal has the potential to alter this litigation’s path and outcome, just as an appeal of almost any controlling question of law would. But immediate review will not accelerate its end in this instance. Under these circumstances, the preference for final judgments wins out.”
“That the prosecutor has failed to oppose interlocutory review does not change things. Even though we have observed that the § 1292(b) factors are ‘guiding criteria’ for our court, not ‘jurisdictional prerequisites,’ . . . that does not mean the parties can concede their way to appellate review without our input[.]”