United States District Court, District of New Jersey, D
March 6, 2002
MICHAEL BOWERS, PLAINTIFF,
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, INC., NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, UNIVERSITY OF IOWA, AMERICAN INTERNATIONAL COLLEGE, DEFENDANTS, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. DELAWARE STATE UNIVERSITY, UNIVERSITY OF MEMPHIS, UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS.
The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge.
INTRODUCTION AND PROCEDURAL HISTORY
This Opinion, the ninth in the ongoing saga of Michael Bowers, resolves
certain unanswered questions left open by my previous opinion, in which I
largely denied the Motions to Dismiss of the Third-Party Defendants.
See Bowers v. Nat'l Collegiate Athletic Assoc., 171 F. Supp.2d 389
(D.N.J. 2001) ("Bowers VIII").*fn1 More specifically, I determined that
the Defendant and Third-Party Plaintiff, Temple University of the
Commonwealth System of Higher Education ("Temple"), had a right to
contribution under Title II of the Americans with Disabilities Act
("Title II") and Section 504 of the Rehabilitation Act of 1973 ("Rehab.
Act") against each of the Third-Party Defendants. I declined, however, to
decide whether or not a similar right of contribution existed under the
New Jersey Law Against Discrimination ("NJLAD").
My hesitation to decide the NJLAD question was based on the fact that
the Third-Party Defendant, University of Memphis ("Memphis"), as an "arm
of the state" of Tennessee, is immune from suit in federal court under a
state cause of action, and the remaining Third-Party Defendants,
University of Massachusetts Amherst ("U. Mass.") and Delaware State
University ("DSU") have at least colorable claims to the same immunity.
This Court, arguably, lacks jurisdiction to hear Temple's supplemental
state claims against immune entities. As I explained in my previous
opinion, sovereign immunity does not partake of all of the traditional
features of subject matter jurisdiction. See Bowers VIII, 171 F. Supp.2d
at 398-99; see also Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381,
389 (1998) (noting that court need not raise sovereign immunity defense
on its own motion). There is language in the Pennhurst opinion, however,
to suggest that at least the bar against supplemental state law claims
is jurisdictional, perhaps because the policy interests of sovereign
immunity counsel a narrow view of pendent jurisdiction. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 118 (1984) (noting that
"doctrine of pendent jurisdiction . . . has a different scope when
applied to suits against the State"). On the other hand, that language
may well be dicta, and the Third Circuit has rejected the view that the
Eleventh Amendment is a limit on federal jurisdiction. Compare id. at
119-20, with Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1144
(3d Cir. 1995), and Schacht, 524 U.S. at 391 (observing that Supreme
Court has not determined whether Eleventh Amendment immunity "is a matter
of subject-matter jurisdiction"). Still, I deemed it wiser to err on the
side of caution.*fn2
I therefore requested supplemental briefing on the question of whether
U. Mass. and DSU were entitled to claim the sovereign immunity of their
respective states. DSU elected not to file a supplemental brief. I now
must determine whether or not U. Mass. is an "arm of the state" of
Massachusetts, and, if so, whether or not the NJLAD even permits a claim
for contribution in these circumstances.
Additionally, as part of my determination that Temple may bring a claim
for contribution against the Third-Party Defendants under Title II and
the Rehab. Act, I ruled that Congress had validly abrogated the sovereign
immunity of the States in enacting Title II, at least to the extent that
Title II does not permit damages for conduct other than intentional
discrimination. See Bowers VIII, 171 F. Supp.2d at 402-08. I also
concluded that Memphis waived its immunity from suit in accepting funds
under the terms of the Rehab. Act. Id. at 408-09. Memphis has appealed
those determinations to the Third Circuit.*fn3 Memphis has also sought
a stay in this Court of any further proceedings pending the outcome of
the appeals. Approximately one month after Memphis filed its notice
appeal, on December 21, 2001, the University of Iowa ("Iowa"), one of the
original Defendants, filed an appeal challenging my July 3, 2001 Opinion
and Order denying Iowa status as an arm of the state entitled to
Moreover, U. Mass. has applied to me to certify an interlocutory
appeal, pursuant to 28 U.S.C. § 1292(b), so that it may in turn
petition the Third Circuit for consideration of its appeal of my
determination that a right of contribution exists, as a matter of
statutory interpretation, under Title II and the Rehab. Act. That
question, as I explained in Bowers VIII, is logically antecedent to the
sovereign immunity issue as I framed it. I asked, first, whether there
exists a right of contribution in general under the statutory framework
of Title II and the Rehab. Act. See Bowers VIII, 171 F. Supp.2d at
395-97. Since I concluded that contribution is available under both
statutes, I went on to consider whether or not the Third-Party Defendants
could have been liable to Bowers in the first instance, as that is one of
the common-law elements of a right to contribution.*fn5 See id. at
397-98. U. Mass.'s proposed appeal, as I understand
it, challenges the first, statutory, determination, but not the second,
fact-specific one. U. Mass. also seeks a stay pending any appeal of the
right to contribution/statutory interpretation issue.
Finally, Bowers has moved to sever the Third-Party claims in their
entirety, so that his case, which is ready to proceed to trial, need not
wait for the pending appeals by the Third-Party Defendants. That motion
is currently pending before Magistrate Judge Rosen.
This Court has jurisdiction over Temple's claims pursuant to
28 U.S.C. § 1367(a).*fn6
A. U. Mass.'s Motions to Dismiss
In its Supplemental Brief, U. Mass. seeks to dismiss Temple's claims
for contribution under both federal and state statutes on the grounds
that it possesses sovereign immunity from suit. I requested supplemental
briefing only on the question of U. Mass.'s immunity from suit under the
NJLAD. See Bowers VIII, 171 F. Supp.2d at 409. However, U. Mass. relies
for its federal immunity argument almost entirely on Memphis' Rule
12(b)(1) Brief. Temple, of course, has already had an opportunity to
respond to those arguments. Since I therefore see little danger of
prejudice to Temple, I will treat U. Mass.'s Brief as a Motion to Dismiss
Temple's claims under Title II and the Rehab. Act, as well as those under
1. Whether U. Mass. is an "Arm of the State" of
Whether or not U. Mass. is an entity entitled to sovereign immunity
turns on whether, when U. Mass. is a defendant in a law suit, the State
of Massachusetts is the "`real, substantial, party in interest.'" Univ.
of Cal. v. Doe, 519 U.S. 425, 429 (1997) (quoting Ford Motor Co. v. Dep't
of Treas., 323 U.S. 459, 464 (1945)). As the parties are now painfully
aware, the Third Circuit applies a massive multi-factor balancing test to
determine when a state entity is an "arm of the state," so that in a
claim against the entity the state is the real party in interest. See
Carter v. City of Philadelphia, 181 F.3d 339, 347-48 (3d Cir. 1999);
Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir.
1989). I have previously determined, however, that exposure of the state
treasury to judgments against the entity is sufficient to demonstrate
that the entity is an arm of the state. See Bowers VIII, 171 F. Supp.2d
at 402 (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 50-51
(1994); id. at 59 (O'Connor, J., dissenting)). In addition, I concluded
that where a state denominates all of a university's funds as "state"
funds, respect for the state's power to order its own governmental
processes requires me to abide by that label, even if largely contrary to
its functional accuracy. Id. at 401-02 (citing Doe, 519 U.S. at 429-31;
Gregory v. Ashcroft, 501 U.S. 452,
Massachusetts, like Tennessee, assigns all moneys received by its state
universities to the state treasury. See Mass. Const. Amends. art. LXIII
§ 1; Town of Manchester v. Dep't of Envtl. Quality Eng'g,
409 N.E.2d 176, 182-83 (Mass. 1980). Certain funds that are received for
limited purposes, such as federal grants, may be held in trusts and
expended only for the limited purpose for which they are received. Town
of Manchester, 409 N.E.2d at 183. None of U. Mass.'s limited purpose
funds may be used to pay judgments against the university. See Daniel
v. Am. Bd. of Emergency Med., 988 F. Supp. 127, 180 (W.D.N.Y. 1997);
Lenhardt Aff. ¶¶ 6-13. Thus, any judgment would be paid by what
Massachusetts law describes as state funds. That is a sufficient basis
for me to conclude that U. Mass. is an arm of the state of
Massachusetts. See Bowers VIII, 171 F. Supp.2d at 401-02. Accordingly, I
must dismiss Temple's claims for contribution under the NJLAD against U.
Mass. See id. at 409; see also Raygor v. Regents of Univ. of Minn., ___
S.Ct. ___, 2002 WL 269234, at *5 (Feb. 27, 2002).
2. U. Mass.'s Motion to Dismiss Temple's Claims for
Contribution Under Title II and the Rehab. Act.
U. Mass. relies in its brief almost entirely on the arguments
previously advanced by Memphis. See U. Mass.'s Supp. Br. at 30.
Naturally, I reject those arguments, for the reasons I have explained
previously. Two matters, however, deserve further consideration.
First, U. Mass. argues that, inasmuch as the right to contribution
under Title II and the Rehab. Act is created by federal common law,
rather than by Congress, it fails the "clear statement rule." See,
e.g., Quern v. Jordan, 440 U.S. 332, 345 (1979) (holding that state
immunity was not abrogated where Congress had not "explicitly and by
clear language indicate[d] . . . an intent to sweep away the immunity of
the States"). This argument misunderstands the basis for my decision in
Bowers VIII. Neither U. Mass. nor Memphis has challenged Temple's status
as an arm of the state of Pennsylvania. States are not immune from suit
by other states. See, e.g., Colorado v. New Mexico, 459 U.S. 176, 182
n. 9 (1982) (holding that defendant state could not assert sovereign
immunity where suit was brought to vindicate interests of plaintiff
State, rather than interest of private state residents). Nonetheless, as
I explained, there is no right to contribution where the third-party
defendant would be immune from suit by the principal plaintiff. See
Bowers VIII, 171 F. Supp.2d at 397 (citing W. Page Keeton et al., Prosser
& Keeton on Torts § 50, at 339-40 (5th ed. 1984)); see also Tomkovich
v. Pub. Serv. Coordinated Transp., 61 N.J. Super. 270, 274-76, 160 A.2d 507
(App. Div. 1960) (holding that there was no right to contribution when
third-party defendant had spousal immunity from suit by principal
plaintiff). Therefore, the only Eleventh Amendment issue in this case is
whether U. Mass. is immune from suit by Bowers. I have already answered
that question in the negative.*fn7
Secondly, I note that my determination that Memphis has waived its
immunity in accepting funds under the Rehab. Act does not necessarily
apply equally to U. Mass. See Bowers VIII, 171 F. Supp.2d at 408-09. U.
Mass. has not offered evidence from which I could conclude that it was
coerced into waiving its immunity in accepting funds under the Rehab.
Act. Sovereign immunity is an affirmative defense, and the burden is
upon the party asserting immunity to come forward with facts sufficient to
support it. See Carter, 181 F.3d at 347. Therefore, I conclude that U.
Mass. has waived any coercion argument it might have.
B. The NJLAD Claims
DSU has renewed its Motion to Dismiss Temple's claim for contribution
under the NJLAD on the ground that the NJLAD does not provide for a right
to contribution, either in general or in these particular circumstances.
Upon close scrutiny I have discovered that an accurate resolution of DSU's
arguments would require me to determine not one, but two distinct
questions of first impression under New Jersey Law. Since, for reasons I
will explain, there are no strong reasons of economy, judicial or
otherwise, to keep the NJLAD and other contribution claims together in
one litigation, I will exercise my discretion under
28 U.S.C. § 1367(c)(1) to dismiss without prejudice the supplemental
NJLAD claim against DSU.
A federal court may dismiss a supplemental state law claim if, among
other reasons, "the claim raises a novel or complex issue of State law."
28 U.S.C. § 1367(c)(1) (2000); see Trump Hotels & Casino Resorts,
Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 487 (3d Cir. 1998). In
general, though, considerations of "judicial economy, convenience, and
fairness to the parties" require that a court with original federal
jurisdiction over some claims retain supplemental jurisdiction over the
others, in the absence of a "substantial countervailing consideration."
Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
New Jersey has not decided whether or not defendants sued under the
NJLAD may bring claims for contribution. Contribution in New Jersey
exists by statute. See Joint Tortfeasors Contribution Law, N.J. Stat.
Ann. §§ 2A:53A-1 to -5 (West 2000) ("JTCL"); Comparative Negligence
Act, N.J. Stat. Ann. §§ 2A:15-5.1 to -5.4 (West 2000) ("CNA"). The
JTCL does cover intentional tortfeasors, including actions for breach of
contract, see Dunn v. Praiss, 139 N.J. 564, 575, 656 A.2d 413 (1995), but
it is unclear whether a "tortfeasor" can include a wrongdoer under the
NJLAD. The New Jersey Supreme Court has noted, in passing, the existence
of claims for indemnification and contribution under the NJLAD, without
offering any judgment about their merits. See Payton v. N.J. Turnpike
Auth., 148 N.J. 524, 543 n. 1, 692 A.2d 321 (1997). Although federal law
is often instructive in NJLAD matters, see, e.g., id. at 538, it is of
little help here. The reason there is no claim for contribution under
Title VII is not because of policy but because of Article I
constitutional limits on the power of federal courts to imply a right to
contribution. See infra Part II.C. The question here, though, is the
proper construction of an express statutory grant of a third-party
Assuming, however, that I were to find that there is a general right to
contribution under the NJLAD, I would be faced with a subsidiary problem
in determining how to apply statutory principles of contributory
negligence to the common-law doctrine of joint and several liability.
The CNA "modifie[d] joint and several liability" to require a jury to
percentage of fault for a particular harm among all of the proximate
causes for that harm. N.J. Stat. Ann. § 2A:15-5.2 & cmte.
statement. An individual defendant is liable for the entire judgment only
if he or she is adjudged 60% or more liable. Id. § 5.3. A defendant
who, as a result, is compelled to pay more than the apportioned share of
liability may then seek contribution from the other parties at fault.
Id. § 5.3(e). The total of all percentages must be 100%. Id. §
5.2(a)(2). Where apportionment is not possible, the percentage
contribution must be divided equally among all defendants. See Campione
v. Soden, 150 N.J. 163
, 184, 695 A.2d 1364
At common law, however, co-conspirators or other defendants who acted
in concert to commit the same harm were each jointly and severally
— that is, 100% — liable to the victim.*fn8 See Keeton et
al., supra, § 86. Both Judge Pisano and I have found that the JTCL
preserved joint and several liability in its traditional common law sense
among parties who act together in committing the wrong. See Lentz v.
Mason, 961 F. Supp. 709, 719 (D.N.J. 1995) (Orlofsky, J.); Erkins v. Case
Power & Equip. Co., 164 F.R.D. 31, 33 (D.N.J. 1995) (Pisano, J.); see
also Restatement (Third) of Torts: Apportionment of Liability §
15 (2000) (requiring joint and several liability for defendants who act in
concert). Neither one of us, however, appears to have considered whether
the New Jersey legislature intended to supersede the common law and
require apportionment even among co-conspirators. That is a question
that would be better answered by the courts of New Jersey in the first
Considerations of judicial economy do not weigh strongly in the other
direction. Obviously, duplicative litigation is wasteful. I see three
possible outcomes in state court, however, none of them involving much
burden on the parties. First, the state court could find that there is
no right of contribution under the NJLAD, a question that would
presumably be resolved on a motion to dismiss. Second, if the New Jersey
court finds that the liability of the Third-Party Defendants is the same
as under federal law, Temple will be bound by the jury's determination in
this Court and no further proceedings in state court will be necessary.
Lastly, the state court might find that the CNA has redefined "joint and
several liability" in all circumstances. If so, Temple will only have a
right to contribution if it is held 60% or more liable for Bowers's
loss, see N.J. Stat. Ann. § 2A:15-5.3, an outcome that seems so
remote that the state court's interpretation of the CNA should be enough
to terminate the litigation. To the extent that there is some unfairness
to the parties in being obliged to seek relief in another forum, that
harm may well be outweighed by the fairness interest of the opposing
parties in reaching an outcome most consistent with New Jersey law.
On balance, therefore, I conclude that the interests of comity and
accuracy are clearly more significant than any economy concerns.
Accordingly, I will dismiss Temple's claim for contribution under the
NJLAD against DSU, without prejudice to Temple's right to seek
contribution in state court.*fn9
C. Memphis' Motion for a Stay Pending Appeal
Memphis has sought a stay of any further proceedings in the third-party
action pending resolution of its appeal from my Order denying it
immunity. As Memphis's appeal is not facially defective, and plainly not
frivolous, I am obliged to grant its request. See Rouse v. Plantier,
997 F. Supp. 575, 582-83 (D.N.J. 1998). To be clear, however, if
Temple's Third-Party claims should be severed from Bowers's claims, my
stay will apply only to Temple's claims. An appeal divests this Court of
jurisdiction only over "those aspects of the case involved in the
appeal." Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (citing Griggs
v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per
curiam)). Counsel for the Third-Party Defendants have suggested in
correspondence that they might be prejudiced by a trial of Bowers's
claims against Temple while Temple's claims against them are stayed. In
effect, then, to allow Bowers's claims to proceed during Memphis's appeal
might oblige it to choose between the benefits of its immunity and its
ability to preserve its longer-term interests. Since at this time I am
not aware of any reason why the Third-Party Defendants would be precluded
from re-litigating their own culpability, however, I fail to see the
source of the prejudice.
D. U. Mass.'s § 1292(b) Motion.
U. Mass. and DSU seek my permission to petition the Third Circuit to
hear their interlocutory appeal of my determination that there exists a
general right to contribution under Title II and the Rehab. Act.*fn10
See 28 U.S.C. § 1292(b) (2000).*fn11
Whether or not a right to
contribution exists is a "controlling" question for the Third-Party
Defendants, because in its absence they can be dismissed from the case.
See Katz v. Carte Blanche Corp., 496 F.2d 747
, 755 (3d Cir. 1974)
(holding that a "controlling question of law" includes, at a minimum, an
order which if erroneous would constitute reversible error); cf.
Northwest Airlines, Inc. v. Transp. Workers Union, 451 U.S. 77
, 85 n. 12
(1981) (noting that interlocutory appeal from district court decision
finding a right to contribution was "appropriate"). An appeal at this
stage would also bring us closer to the end of this litigation. The
Third-Party claims must already wait for resolution of Memphis' appeal as
of right. It seems wiser to resolve all of the significant appellate
issues now, rather than wait for another appeal after trial.
Whether there is "substantial ground for difference of opinion" with my
determination is a more difficult question. U. Mass. raises two main
possible flaws in my decision, of which I think the first to be
meritless and the second somewhat more plausible. U. Mass.'s initial
claim is that I improperly failed to consider whether or not Temple was a
member of the class for whose especial benefit Title II was enacted.
See U. Mass.'s § 1292 Br. at 9-11 (citing Alexander v. Sandoval,
532 U.S. 275, 121 S.Ct. 1511, 1520-21 (2001); Northwest, 451
U.S. at 92). That argument simply confuses the careful parsing of
congressional intention needed to preserve Congress' exclusive Article I
control over federal jurisdiction, see Northwest, 451 U.S. at 95
("[F]ederal courts, unlike their state counterparts, are courts of limited
jurisdiction that have not been vested with open-ended lawmaking
powers."), with the broad-ranging power of federal courts to implement
federal common law. When Congress delegates to courts the duty of
elaborating statutory remedies, the traditional factors for inferring new
rights are no longer of paramount importance.*fn12 See
Musick, Peeler & Garrett v. Employers Ins. of Wasau, 508 U.S. 286,
290-91 (1993); id. at 302 (Thomas, J., dissenting); Texas Indus.,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 645 (allowing that
a common-law elaboration of a right to contribution could be permitted
when Congress "intended courts to have the power to alter or supplement
the remedies enacted"); Northwest, 451 U.S. at 96 & n. 35 (observing
that federal courts could properly find right to contribution without
congressional authorization where statute provided "an authorization for
judicial development of substantial federal law to govern those cases").
That is not to say that Congress' intention to benefit one class and
not another is irrelevant to the existence of a right to contribution.
If contribution would undermine the benefit of the statutory scheme for
that class, or interfere with an express remedial plan drawn up by
Congress for that class, contribution is inappropriate. In my earlier
opinion, I took fully into account the fact that Congress intended to
benefit the disabled, not those who discriminate against them, in
enacting Title II. I determined, however, that a right to contribution
actually extended the reach of the ADA, by drawing on the resources of
principal defendants to identify and punish contributory violators whose
misdeeds were hidden from plaintiffs. See Bowers VIII, 171 F. Supp.2d at
397. Thus, I find no "substantial ground" for disagreement with my
opinion in U. Mass.'s first contention.
U. Mass. also argues, however, that my reading of the statutory purpose
of Title II was at least plausibly erroneous in another respect.
According to U. Mass., I should have considered the fact that no
contribution is available under Title I in deciding the same question
under Title II. The Musick court considered analogous portions of the
Securities Acts in determining whether or not contribution was
appropriate in actions under § 10(b). 508 U.S. at 294-97. Other
courts have from time to time looked to Title VII of the Civil Rights Act
of 1964 in shaping remedies under Title VI of that statute. See, e.g.,
Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 587-88 (1983)
(opinion of White, J.). In one respect, this
argument does no more than restate U. Mass.'s first contention, since,
after all, the reason that there is no right of contribution under Title
VII is because there is already a congressionally designed remedial
scheme in place. See Northwest, 451 U.S. at 93-94. There might, however,
conceivably be arguments that it would be fairer, or more consistent and
predictable, for remedies under Title I and Title II to mirror each other
as far as possible. While I do not find such arguments especially
persuasive — it is utterly commonplace in our law for a right to be
free from government discrimination to be more expansive than a comparable
right to be free from private discrimination — they are not
completely without merit.
U. Mass.'s second argument also suggests another important
consideration in the amount of ground for disagreement Bowers VIII
offers. The decision to create a right to contribution, as I have now
stated repeatedly, is essentially a feature of federal common law. To be
certain, my determination was highly informed by precedent. Yet I think
it is inevitable that any common law decision, although constrained by
principled readings of prior cases, offers room for interpretive
differences based on different policy or value preferences. See Ronald
Dworkin, Law's Empire 176-275 (1986). Thus, for example, another judge
might conclude that the deterrent interests of the ADA are better served
by larger judgments against single defendants, rather than smaller
judgments apportioned out among multiple defendants. See Judson v.
Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 88-89, 110 A.2d 24
(1954) (Brennan, J.) (discussing competing policy arguments). While that
view is, I believe, no longer widely credited, I cannot say that it is
Taking into account U. Mass.'s second contention, along with the
inherent flexibility of common law decision-making, I conclude that there
is "substantial ground for disagreement" with my conclusion that a right
to contribution exists under Title II and the Rehab. Act. Accordingly, I
will grant U. Mass.'s Motion for a Prescribed Statement. In view of my
decision that this case must be stayed pending Memphis' appeal as of
right, see supra Part II.C., I will deny U. Mass.'s motion to stay as
For the reasons set forth above, I shall deny U. Mass.'s Motion to
Dismiss Temple's claims for contribution under Title II and the Rehab.
Act, but grant U. Mass.'s Motion to Dismiss Temple's claim for
contribution under the NJLAD. I will also dismiss Temple's claim for
contribution under the NJLAD against DSU without prejudice to Temple's
right to re-file in state court. In addition, I will grant Memphis's
Motion to Stay Temple's claims pending resolution of Memphis's appeal.
Finally, I will grant the Motions of U. Mass. and DSU for a Prescribed
Statement under 28 U.S.C. § 1292(b), but deny their request for a
stay pending that application. The Court will enter an appropriate form