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Morton College Bd. of Trustees of Ill. Community College Dist. No. 527 v. Cicero, Town of

Citation: 29 ELR 20284
No. 97 C 8766, 25 F. Supp. 2d 883/(N.D. Ill., 11/09/1998)

The court denies a motion to certify for immediate appeal its previous order holding that abstention was unwarranted in a college's Comprehensive Environmental Response, Compensation, and Liability Act and Resource Conservation and Recovery Act suit against a town. The court first holds that the town's motion for certification is untimely. An application to appeal a district court's order under 28 U.S.C. § 1292(b) must be filed in the court of appeals within 10 days after entry of the district court's order. The town filed its motion of certification 30 days after the district court entered its order and 14 days after the district court ordered the town to file its answer to the college's second amended complaint. The court next holds that the town's one reason for its delay, which is that the motion would have been filed by the answer date but for the fact that the town was preparing its summary judgment motion in a separate suit with the college, was insufficient to justify the delay.

The court then holds that even if the town's motion was filed on time, the town failed to meet § 1292(b)'s requirement that a substantial ground for a difference of opinion exists as to the question of law at issue. In this case, there is not substantial ground for a difference of opinion as to the court's determination that the town has failed to show that this case is one of those exceptional cases that overcomes the presumption against abstention. Furthermore, in making its decision to deny the stay, the court carefully considered the circumstances of this case and all of the factors of the abstention doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). The town simply has failed to show facts that would overcome the presumption against a stay at this stage of the litigation.

Counsel for Plaintiff
Stanley T. Kusper Jr.
Kusper & Raucci
30 N. La Salle St., Ste. 3400, Chicago IL 60602
(312) 332-5000

Counsel for Defendant
Bradley D. Birge
Pulliam & Birge
25 E. Washington St., Chicago IL 60602
(312) 759-8800