Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`Plaintiffs,
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`ERIC CERVINI, WENDY DAVIS, DAVID
`GINS, TIMOTHY HOLLOWAY,
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`v.
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`ELIAZAR CISNEROS, HANNAH CEH,
`JOEYLYNN MESAROS, ROBERT
`MESAROS, and DOLORES PARK,
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`1:21-CV-565-RP
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`Defendants.
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`ORDER
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`Before the Court are Defendants Joeylynn Mesaros and Robert Mesaros’s (together, “the
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`Mesaros Defendants”) Motion for Reconsideration and Renewed Request to Certify an
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`Interlocutory Appeal, (Dkt. 210); Defendant Eliazar Cisneros’s (“Cisneros”) Motion for
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`Reconsideration and Renewed Request to Certify an Interlocutory Appeal, (Dkts. 222, 223); and
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`Defendant Dolores Park’s (“Park”) Motion for Reconsideration and Renewed Request to Certify an
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`Interlocutory Appeal, (Dkt. 224). Plaintiffs filed a joint, consolidated response in opposition. (Dkt.
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`240). Also, before the Court are the Mesaros Defendants’ Motion to Stay Case Pending Resolution
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`of Reconsideration and Interlocutory Appeal, (Dkt. 229), Park’s Motion to Stay, (Dkt. 230), and
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`related briefing. Having considered the parties’ briefs, the record, and the relevant law, the Court will
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`deny Defendants’ motions for reconsideration and requests to certify an interlocutory appeal, and
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`moot Defendants’ motions for a stay.
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`1
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 2 of 15
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`I. BACKGROUND
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`This case arises out of an incident alleged to have occurred during the 2020 U.S. presidential
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`election campaign period. Plaintiffs assert that on October 30, 2020, they were traveling on I-35
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`between San Antonio and Austin, Texas, in a Biden-Harris campaign tour bus. (Am. Compl., Dkt.
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`151, at 2–3). At that time, they allege, “dozens of individuals in at least forty vehicles” participated in
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`a “Trump Train” to show support for presidential candidate Donald Trump by surrounding the
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`campaign bus on the highway. (Id.). Plaintiffs state that for at least ninety minutes, the Trump Train
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`forced the campaign bus to slow down to a crawl on the highway, that cars came within inches of
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`the campaign bus, boxing it in, and that one Trump Train vehicle slammed into a Biden campaign
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`staffer’s car, causing Plaintiffs to fear for their lives and suffer emotional trauma. (Id. at 2–3).
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`Plaintiffs state Cisneros, the Mesaros Defendants, and Park, along with other dismissed Defendants,
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`coordinated to wait for and surround the campaign bus. (Id. at 3). Based on these allegations,
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`Plaintiffs assert several causes of action: (1) that Defendants violated the Ku Klux Klan Act, 42
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`U.S.C. § 1985(3); (2) that Defendants engaged in a civil conspiracy; and (3) that Defendants engaged
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`in a civil assault. (Id. at 58–62).
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`On March 23, 2022, this Court entered an order denying Defendants’ Motions to Dismiss.
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`(Dkt. 64). Shortly after, Defendants filed their first motions for certificate of appealability pursuant
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`to 28 U.S.C. § 1292 and reconsideration on the Court’s order denying the motions to dismiss. (Dkts.
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`66, 69, 70). In their motions, Defendants argued that the Court should certify an interlocutory
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`appeal because the issue of whether § 1985(3) requires Plaintiffs to plead that the conspiracy against
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`them stemmed from race-based animus is a novel, controlling issue of law, that there is substantial
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`ground for difference of opinion about the question of law, and that an immediate appeal from the
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`order may materially advance the ultimate termination of the litigation. (Id.) On August 19, 2022,
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`2
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 3 of 15
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`this Court denied these motions. (Dkt. 100). This Court found that its order denying the motions to
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`dismiss did not involve a “controlling question of law to which there is substantial ground for
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`difference of opinion” because “a lack of binding cases addressing a specific legal issue does not
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`constitute a substantial ground for difference of opinion.” (Id. at 6). Further, the Court found that
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`early appellate review would not “materially advance the ultimate termination of the litigation,” as
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`required by § 1292, because interlocutory appeal would slow the case, which was “problematic as the
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`parties have begun to engage in discovery and another case in front of this Court, Cervini v. Stapp,
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`1:21-cv-568, is dependent on the continuing litigation in this case.” (Id.).
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`On January 18, 2023, Plaintiffs filed their First Amended Complaint, (Dkt. 151), and on
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`February 8, 2023, Defendants responded by filing renewed motions to dismiss and requests to
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`authorize an interlocutory appeal, (Dkts. 163, 164, 165). Defendants argued that the Court should
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`dismiss Plaintiffs’ claims under § 1985(3) because these claims require racial animus and state action.
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`(Id.). Defendants also argued that the Court should certify an interlocutory appeal to resolve the
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`question of whether Plaintiffs were required to plead the elements of racial animus or state action
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`for the § 1985(3) claim. (Id.). On August 3, 2023, the Court issued an order denying both the
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`motions to dismiss and motions for interlocutory appeal. (Dkt. 204). The Court found that
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`Defendants’ assertions were a rehashing of arguments made in previous motions and denied the
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`renewed motions for the reasons cited in its previous orders. (Id. at 5–6, 8).
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`The Mesaros Defendants and Park then filed petitions for writs of mandamus with the Fifth
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`Circuit. (Dkts. 205-1, 208-1). They asked the Fifth Circuit to vacate this Court’s denial of
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`Defendant’s motions to dismiss, or in the alternative vacate its denial to certify an interlocutory
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`appeal, and direct this Court to certify an appeal under 28 U.S.C. § 1292(b). (Id.). On August 28 and
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`September 13, 2023, the Fifth Circuit issued substantially identical orders denying the petitions, In re
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`3
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 4 of 15
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`Joeylynn Mesaros, No. 23-50593 (5th Cir. Aug. 28, 2023); In re Dolores Park, No. 23-50585 (5th Cir. Sep.
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`13, 2023), stating that the court has never used the writ of mandamus to cure a district court’s denial
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`of certification under § 1292(b). In re Joeylynn Mesaros, slip op. at 1.1 The Fifth Circuit also stated that
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`“there is unquestionably a ‘substantial ground for difference of opinion’ that necessitates certification
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`of a ‘controlling question of law’ under 28 U.S.C. § 1292(b).” (Id. at 6) (emphasis in original). In the
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`Fifth Circuit’s opinion, Defendants have at least four grounds of substantial difference of opinion
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`that would necessitate certification. (Id.). Thus, the Fifth Circuit concluded that this Court had
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`“ample ground for reconsidering its decision in this case” and that this Court “should have granted
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`the § 1292(b) motion.” (Id. at 1–2, 10).
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`Based upon the Fifth Circuit’s order, the Defendants filed their present motions, renewing
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`their request to certify an interlocutory appeal and requesting reconsideration of the Court’s order
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`denying Defendants’ previous motions to dismiss the First Amended Complaint and motions for
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`certification of interlocutory appeal. (Dkts. 210, 222–224). All three motions incorporate the Fifth
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`Circuit’s discussion of the four grounds for substantial difference of opinion and argue that
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`reconsideration and certification are necessary based upon the Fifth Circuit’s order. (Id.). Park’s
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`motion argues that the Fifth Circuit has directed this Court to certify an interlocutory appeal. (Dkt.
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`224, at 2). Park also argues that the Fifth Circuit held that “an immediate appeal from the order may
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`materially advance the ultimate termination of the litigation.” (Id. at 8). Last, the Mesaros
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`Defendants and Park also filed motions to stay the case pending resolution of their motions for
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`reconsideration and the interlocutory appeal. (Dkts. 229, 230).
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`1 Because both orders are substantially the same, in all references to the Fifth Circuit’s orders, the Court will
`cite to the order in In re Joeylynn Mesaros for ease of citation.
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 5 of 15
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`Plaintiffs filed a consolidated response in opposition to Defendants’ reconsideration
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`motions. (Dkt. 240). Plaintiffs state that in light of the Court of Appeal’s order, they will assume that
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`the first two criteria of the test for certification are satisfied, though they note their disagreement
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`with that decision and argue that there is no “substantial difference of opinion” on a “controlling
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`question of law” for several reasons. (See id. at 1, 11–23). Plaintiffs rest their opposition, instead, on
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`the argument that the third prong for certification, whether an interlocutory appeal would materially
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`advance the termination of the litigation, is not met in this case and that the Fifth Circuit’s order
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`does not address the issue. (Id. at 2). Plaintiffs argue that this Court should exercise the discretion
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`granted to it by § 1292(b) to continue to deny certification of an interlocutory appeal because the
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`third requirement for certification is not met. (Id. at 2–3).
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`II. LEGAL STANDARD
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`1. Motion for Reconsideration
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`“[T]he Federal Rules of Civil Procedure do not recognize a general motion for
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`reconsideration.” St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997).
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`Defendants assert their motions under Rule 54(b). “[A]ny order or other decision, however
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`designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
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`parties does not end the action as to any of the claims or parties and may be revised at any time
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`before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
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`Fed. R. Civ. P. 54(b). “Rule 54(b) allows parties to seek reconsideration of interlocutory orders and
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`authorizes the district court to revise at any time any order or other decision that does not end the
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`action.” Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (cleaned up) (citing Fed. R.
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`Civ. P. 54(b)).
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`5
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 6 of 15
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` “Under Rule 54(b), ‘the trial court is free to reconsider and reverse its decision for any
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`reason it deems sufficient, even in the absence of new evidence or an intervening change in or
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`clarification of the substantive law.’” Id. (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910
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`F.2d 167, 185 (5th Cir. 1990)). “Rule 54(b)’s approach to the interlocutory presentation of new
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`arguments as the case evolves can be more flexible, reflecting the ‘inherent power of the rendering
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`district court to afford such relief from interlocutory judgments as justice requires.’” Id. at 337
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`(quoting Cobell v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015)).
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`2. Interlocutory Appeal
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`28 U.S.C. § 1292(b) permits a district judge to, in certain circumstances, certify an issue for
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`interlocutory appeal. The statute reads in part:
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`When a district judge, in making in a civil action an order not otherwise
`appealable under this section, shall be of the opinion that such order
`involves a controlling question of law as to which there is substantial
`ground for difference of opinion and that an immediate appeal from
`the order may materially advance the ultimate termination of the
`litigation, he
`shall
`so
`state
`in writing
`in
`such order.
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`28 U.S.C. § 1292(b).
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`Thus, Defendants must convince the Court that the Court’s order involved (1) a controlling
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`question of law, (2) that there is substantial ground for difference of opinion about the question of
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`law, and (3) that an immediate appeal from the order may materially advance the ultimate
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`termination of the litigation. Rico v. Flores, 481 F.3d 234, 238 (5th Cir. 2007). “All three of these
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`criteria must be met for an order to properly be certified for interlocutory appeal.” Crankshae v. City
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`of Elgin, 2020 WL 1866884, at *1 (W.D. Tex. Apr. 14, 2020) (citing Clark–Dietz & Associates–
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`Engineers, Inc. v. Basic Constr. Co., 702 F.2d 67, 69 (5th Cir. 1983)). “The burden of demonstrating the
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`necessity of an interlocutory appeal is on the moving party.” In re L.L.P. & D. Marine, Inc., 1998 WL
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`6
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 7 of 15
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`66100, at *1 (E.D. La. Feb. 13, 1998) (citing Orson, Inc. v. Miramax Film Corp., 867 F. Supp. 319, 320
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`(E.D. Pa. 1994)).
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` “Interlocutory appeals are generally disfavored, and statutes permitting them must be strictly
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`construed.” Mae v. Hurst, 613 F. App’x 314, 318 (5th Cir. 2015) (quoting Allen v. Okam Holdings, Inc.,
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`116 F.3d 153, 154 (5th Cir. 1997)). “The purpose of § 1292(b) is to provide for an interlocutory
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`appeal in those exceptional cases” in which the statutory criteria are met. United States v. Garner, 749
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`F.2d 281, 286 (5th Cir. 1985); accord Clark–Dietz, 702 F.2d at 69 (“Section 1292(b) appeals are
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`exceptional.”). Typically, interlocutory review is reserved for “exceptional” cases, as the basic
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`structure of appellate jurisdiction disfavors piecemeal appeals. Caterpillar Inc. v. Lewis, 519 U.S. 61, 74
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`(1996); Clark–Dietz, 702 F.2d at 69.
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`Further, “[t]he decision to certify an interlocutory appeal pursuant to section 1292(b) is
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`within the discretion of the trial court and unappealable.” In re Air Crash Disaster Near New Orleans,
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`La. on July 9, 1982, 821 F.2d 1147, 1167 (5th. Cir. 1987), vacated on other grounds by Pan Am. World
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`Airways, Inc. v. Lopez, 490 U.S. 1032, 1033 (1989); see Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 47
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`(1995) (“Congress . . . chose to confer on district courts first line discretion to allow interlocutory
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`appeals.”); Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 405 n.9 (2004) (Ginsburg, J.,
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`dissenting) (“[T]he decision whether to allow an [interlocutory] appeal lies in the first instance in the
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`District Court’s sound discretion.”).
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`III. DISCUSSION
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`Defendants’ motions for reconsideration are intertwined with their renewed requests to
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`certify an interlocutory appeal under § 1292(b) in the sense that both motions require the Court to
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`once again decide whether the issues identified in its previous orders meet the statutory criteria for
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`certification. Defendants urge that this Court’s decision is predetermined because of the Fifth
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 8 of 15
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`Circuit’s orders denying their petitions for writs of mandamus. After careful reconsideration of the
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`issues and review of the Fifth Circuit’s orders, the Court respectfully disagrees. While this Court is
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`bound to follow the direction of the Fifth Circuit, § 1292(b) is a unique statute in the federal scheme
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`in that it “create[s] a dual gatekeeper system for interlocutory appeals: both the district court and the
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`Fifth Circuit must agree . . . before the normal rule requiring a final judgment will be overridden.” In
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`re Ford Motor Co., 344 F.3d 648, 654 (7th Cir. 2003). To this end, the Fifth Circuit has stated that
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`even when a panel invites a district court to certify a case for appeal, as it did here, district courts still
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`retain the “discretion to refuse to certify an appeal.” McClelland Eng’rs, Inc. v. Munusamy, 784 F.2d
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`1313, 1316 n.1 (5th Cir. 1986), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821
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`F.2d 1147 (5th Cir. 1987). The Court does not interpret the Fifth Circuit’s orders in In re Joeylynn
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`Mesaros and In re Dolores Park to be directing the Court to certify an appeal; rather, the Court
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`understands the orders as an invitation to certify an interlocutory appeal in line with the discretion
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`afforded under McClelland Engineers. 784 F.2d at 1316 n.1. However, for the reasons set out below,
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`certifying an interlocutory appeal would not materially advance the ultimate termination of this
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`litigation. Accordingly, because not all criteria for certification are met, this Court will exercise the
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`discretion it retains under § 1292(b) and deny certification of an interlocutory appeal.
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`In its previous orders, the Court denied certification of appeal because it found that none of
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`the three requirements were met. (See Dkt. 100 at 6; Dkt. 204 at 8). The Court stated that there was
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`no “controlling question of law to which there is substantial ground for difference of opinion”
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`because “a lack of binding cases addressing a specific legal issue does not constitute a substantial
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`ground for difference of opinion.” (Dkt. 100 at 6). In its recent orders, however, the Fifth Circuit
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`stated that “there is unquestionably a ‘substantial ground for difference of opinion’ that necessitates
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`certification of a ‘controlling question of law’ under 28 U.S.C. § 1292(b).” In re Joeylynn Mesaros, slip
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`8
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 9 of 15
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`op. at 6 (emphasis in original). The court recounted five grounds by its count that would necessitate
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`this finding: (1) whether the support-or-advocacy clause creates an independent substantive right to
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`engage in support or advocacy, or whether it merely supplies a remedy for violations of rights found
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`elsewhere; (2) whether Plaintiffs’ reading of the support-or-advocacy clauses “comports with the
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`text” of the statute; (3) whether Plaintiffs’ interpretation “comports with Article I of the
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`Constitution”; (4) whether Plaintiffs’ interpretation “comports with the First Amendment”; and (5)
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`whether Plaintiffs need to allege class-based animus. Id. at 6–10. In light of the Fifth Circuit’s order,
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`the Court will reconsider its decisions as to the first two requirements for certification under the
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`discretion provided by Rule 54(b). Accordingly, the Court now finds that its previous orders do
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`involve a (1) “controlling question of law” and (2) that there is “substantial ground for difference of
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`opinion” about the question of law in the orders.
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`However, the Fifth Circuit did not address the third factor: whether certification would
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`materially advance the ultimate termination of this litigation. The Court finds that Defendants have
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`failed to show why this Court erred by denying certification on this prong. Defendants do not
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`devote much space in their motions to discussions about this third requirement. Cisneros and the
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`Mesaros Defendants do not discuss this requirement at all, and Park’s motion devotes only one
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`paragraph to the issue, (see Dkt. 224, at 8). Park argues that an interlocutory appeal would materially
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`advance the ultimate termination of the litigation because Plaintiffs’ Klan Act claims are the “only
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`basis for litigating in federal court”; therefore, if Plaintiffs have failed to plead a federal cause of
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`action under § 1985(3), then their case “fails for want of federal court jurisdiction.” (Id.). Park asserts
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`that because the Fifth Circuit stated that the Klan Act claims are Plaintiffs’ “only basis for litigating
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`in federal court,” it follows that the Fifth Circuit has held that the third requirement for certification
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`has been met. (Id. (citing In re Dolores Park, slip op. at 7)). Plaintiffs respond that the third
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`9
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 10 of 15
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`requirement is not met in this case because Defendants’ failure to properly address this third
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`requirement amounts to a failure to carry their burden in proving that the requirement is met. (Dkt.
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`244, at 7–8). Plaintiffs also argue that the requirement is not met because an “interlocutory appeal
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`would not avoid trial, shorten the litigation, or make discovery easier or less costly.” (Id. at 8).
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`The Court agrees with Plaintiffs. This Court has previously recognized that an interlocutory
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`appeal should not be certified if the movant did not convince the court that the appeal would
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`materially advance the ultimate termination of the litigation. See Gomez v. Niemann & Heyer, L.L.P.,
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`2016 WL 8673848, at *2 (W.D. Tex. Aug. 8, 2016); Doe 1 v. Baylor Univ., 2017 WL 1628994, at *2
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`(W.D. Tex. May 1, 2017); see also Coates v. Brazoria Cnty., 919 F. Supp. 2d 863, 866–67 (S.D. Tex.
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`2013) (stating that a movant’s failure to demonstrate that an interlocutory appeal would materially
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`advance the ultimate termination of the litigation was “fatal” to the movant’s motion). Here, the
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`Court finds it unlikely that Defendants could have met their burden for this requirement when two
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`Defendants did not address the issue at all, while the third Defendant devoted only one paragraph to
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`discussing the issue, especially given that movants carry the burden of proving that all three
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`requirements for certification are met. See L.L.P. & D. Marine, Inc., 1998 WL 66100, at *1.
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`Furthermore, the Court does not agree with Park that “the Fifth Circuit held an immediate
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`appeal of the order will materially advance the ultimate termination of the litigation.” (Dkt. 224, at
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`8). In its orders, the Fifth Circuit simply stated that, “Without the Support-or-Advocacy Clause,
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`respondents’ only federal claim (and hence their only basis for litigating in federal court) fails.” In re
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`Dolores Park, slip op. at 7. The Fifth Circuit did not indicate that this statement was holding that an
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`interlocutory appeal would materially advance the ultimate outcome of the litigation. Nor did this
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`single sentence, which only discusses supplemental jurisdiction, absolve Defendants of their
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`obligation to establish the requisite third element for certification. This Court retains discretion
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`10
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 11 of 15
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`under § 1292(b) to deny certification if a party has not met all three elements and finds that
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`Defendants have not done so.
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`The Court also agrees with Plaintiffs’ substantive arguments about why an interlocutory
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`appeal would not be judicially efficient in this case. In determining if an interlocutory appeal would
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`materially advance the ultimate termination of the litigation, “a district court is to examine whether
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`an immediate appeal would (1) eliminate the need for trial, (2) eliminate complex issues so as to
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`simplify the trial, or (3) eliminate issues to make discovery easier and less costly.” Casanova v. Gold’s
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`Texas Holdings Grp., Inc., 2016 WL 1446233, at *3 (W.D. Tex. Apr. 11, 2016) (quoting Coates., 919 F.
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`Supp. 2d at 867). The ultimate termination of litigation is materially advanced when the “resolution
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`of a controlling question of law would serve to avoid a trial or otherwise substantially shorten the
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`litigation.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (citing 16 Charles
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`Alan Wright, et al., Federal Practice & Procedure § 3930 at 432 (2d ed. 1996)). The Court finds that
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`none of these considerations counsel in favor of an interlocutory appeal.
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`First, an interlocutory appeal would not eliminate the need for trial because even if an appeal
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`led to the dismissal of Plaintiffs’ Klan Act claims, Plaintiffs’ state law claims for civil conspiracy and
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`civil assault would remain. Although the Klan Act claims are the only federal claims in this case,
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`Defendant Park is incorrect that without these claims, the Plaintiffs’ case would “fail[] for want of
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`federal court jurisdiction.” (Dkt. 224, at 8). The supplemental jurisdiction statute gives district courts
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`discretion whether to exercise supplemental jurisdiction over claims when it has dismissed “all
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`claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “When a district court declines
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`to exercise jurisdiction over remaining state law claims following the dismissal of all federal-law
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`claims and remands a suit after investing a significant amount of judicial resources in the litigation . .
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`. that court has abused its discretion under 28 U.S.C. § 1367.” Brookshire Bros. Holding, Inc. v. Dayco
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`11
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 12 of 15
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`Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009); see also Batiste v. Island Records Inc., 179 F.3d 217, 227
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`(5th Cir. 1999) (finding that the district court abused its discretion in remanding state law claims due
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`to the district court’s intimate familiarity with the case after it had been pending in the district court
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`for almost three years, had resulted in numerous depositions and discovery disputes, and had
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`required significant consideration by the district court of multiple motions to dismiss or grant
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`summary judgment). Here, this case has been pending before this Court for over two years and has
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`prompted two sets of motions to dismiss, three sets of motions for reconsideration, and several
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`discovery disputes. Given the significant resources and time that this Court has devoted to this case,
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`it would be reasonable for this Court to exercise supplemental jurisdiction under § 1367 over
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`Plaintiffs’ state law claims should the Klan Act claims be dismissed on appeal. In such a scenario, an
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`interlocutory appeal would not eliminate the need for trial.
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`Second, an interlocutory appeal would not eliminate complex issues so as to simplify the trial
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`because Plaintiffs’ Klan Act claims are factually interrelated and involve the same underlying events
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`as Plaintiffs’ state law claims. Plaintiffs’ Klan Act claims require Plaintiffs to prove that “two or
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`more persons . . . conspire[d]” either to (i) “prevent by force, intimidation, or threat, any citizen
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`who is lawfully entitled to vote, from giving his support or advocacy” in a federal election, or to (ii)
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`“injure any citizen in person or property on account of such support or advocacy.” 42 U.S.C. §
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`1985(3). These elements overlap substantially with the elements Plaintiffs must show to succeed on
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`their state law claim of civil conspiracy. The Klan Act claim elements also overlap with the showing
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`that Plaintiffs must make to prove civil assault: Plaintiffs must prove that Defendants “intentionally
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`or knowingly threaten[ed] [Plaintiffs] with imminent bodily injury” without the need to prove
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`physical contact. Tex. Penal Code § 22.01(a)(2); see also Sanchez v. Striever, 614 S.W.3d 233, 239 (Tex.
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`App. 2020) (noting that the elements of civil assault in Texas “mirror those of a criminal assault”).
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 13 of 15
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`Therefore, Plaintiffs would require substantially the same evidence to prove their state law claims as
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`they would need for their Klan Act claims. This Court has previously denied certification when
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`claims remaining after interlocutory appeal would “likely require much of the same evidence,
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`examination, and argument” as claims to be considered on interlocutory appeal because certification
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`would “neither significantly narrow the scope of evidence nor substantially shorten future analysis or
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`trial.” Doe 1, 2017 WL 1628994, at *2; see also Gomez, 2016 WL 8673848, at *2 (denying certification
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`where the claims to be considered on interlocutory appeal were “factually interrelated and all involve
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`the same underlying” events as the claims that would remain after appeal). Because Plaintiffs’ Klan
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`Act claims and the state claims are so intertwined, an interlocutory appeal would not help to
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`eliminate complex issues so as to simplify the trial.
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`Third, an interlocutory appeal at this stage in the litigation would also not eliminate issues to
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`make discovery easier and less costly. Given the overlapping nature of the Plaintiffs’ claims and the
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`evidence needed to prove them, the scope of discovery would not significantly change should an
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`interlocutory appeal dismiss the Klan Act claims. In addition, there has already been extensive
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`discovery in this case since discovery began on December 21, 2021, almost two years ago. (See Dkt.
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`44). Defendants have collectively served 283 Requests for Production of Documents and responded
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`to fifty Interrogatories, fifty-two Requests for Admissions, and 251 Requests for Production of
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`Documents. (Dkt. 240, at 10). They have produced over 32,000 documents and participated in eight
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`non-party depositions. (Id.). Remaining discovery includes the depositions of Defendant Park and
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`Plaintiffs, and the parties’ discovery deadline is December 12, 2023. (Dkt. 254). While Defendants
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`argue that remaining discovery will be time-consuming and costly, (see Mesaros Mot. to Stay, Dkt.
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`229, at 2 n.1), Plaintiffs argue that the “bulk of discovery is over” and that any remaining discovery,
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`such as Park and the Plaintiffs’ depositions, would need to occur regardless of an appeal of the Klan
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 14 of 15
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`Act claims, (see Resp., Dkt. 240 at 10–11). The Court agrees with Plaintiffs. An interlocutory appeal
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`would not make discovery easier or less costly given the limited nature of discovery left in this case
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`and the need for that discovery to occur with or without Plaintiffs’ Klan Act claims remaining as
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`part of this case.
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`Accordingly, the Court is not convinced that an interlocutory appeal to the Fifth Circuit will
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`materially advance the ultimate termination of this litigation. Even if the Fifth Circuit were to
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`dismiss the Klan Act claims through an interlocutory appeal, such resolution would not “serve to
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`avoid a trial or otherwise substantially shorten the litigation,” see McFarlin, 381 F.3d at 1251. Nor
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`would it “eliminate complex issues so as to simplify the trial” or make “discovery easier and less
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`costly.” See Coates, 919 F. Supp. 2d at 867. Because the Court finds that an interlocutory appeal
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`would not materially advance the ultimate termination of this litigation, Defendants have not carried
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`the required burden to succeed on a motion for certification of an interlocutory appeal under §
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`1292(b). See Crankshae, 2020 WL 1866884, at *1 (“All three of [the certification] criteria must be met
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`for an order to properly be certified for interlocutory appeal.”). The Court therefore denies
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`Defendants’ motions for reconsideration and renewed requests for interlocutory appeal. Because an
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`interlocutory appeal has not been certified at this time, Defendants’ motions for a stay are moot.
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`IV. CONCLUSION
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`For these reasons, IT IS ORDERED that the Mesaros Defendants’ Motion for
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`Reconsideration and Renewed Request to Certify an Interlocutory Appeal, (Dkt. 210); Cisneros’s
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`Motion for Reconsideration and Renewed Request to Certify an Interlocutory Appeal, (Dkts. 222,
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`223); and Park’s Motion for Reconsideration and Renewed Request to Certify an Interlocutory
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`Appeal, (Dkt. 224), are DENIED.
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`Case 1:21-cv-00565-RP Document 258 Filed 10/18/23 Page 15 of 15
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`IT IS FURTHER ORDERED that the Mesaros Defendants’ Motion to Stay Case
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`Pending Resolution of Reconsideration and Interlocutory Appeal, (Dkt. 229), and Park’s Motion to
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`Stay, (Dkt. 230), are MOOT.
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`SIGNED on October 18, 2023.
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`________________________________
`ROBERT PITMAN
`UNITED STATES DISTRICT JUDGE
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