The opinion of the court was delivered by: ALESIA
MEMORANDUM OPINION AND ORDER
Before the court is defendant the Town of Cicero's motion pursuant to 28 U.S.C. § 1292(b) for certification of the court's September 1, 1998 order. For the following reasons, the court denies defendant's motion.
On December 17, 1997, plaintiff Morton College Board of Trustees of Illinois Community College District No. 527 ("the College") filed suit against defendant The Town of Cicero ("the Town") in this court. On May 20, 1997, the College filed a second amended complaint. The College's second amended complaint contains nine counts, three of which are under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, and four of which are under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992.
After obtaining an extension of time in which to answer or otherwise plead, the Town filed a motion to dismiss the College's second amended complaint on June 26, 1998. In its motion, the Town argued that this court should abstain from exercising jurisdiction over this case pursuant to either the Burford abstention doctrine
or the Colorado River abstention doctrine
In an order entered on September 1, 1998, this court denied the Town's motion to dismiss, finding that abstention was unwarranted under either abstention doctrine. The court ordered the Town to file an answer to the College's second amended complaint no later than September 14, 1998.
The Town did not file an answer by September 14, 1998. When the court noticed that the Town had not filed an answer, the court set a status date for October 1, 1998. On that date, the parties appeared and the Town informed the court that the Town was filing a motion pursuant to 28 U.S.C. § 1292(b) for certification of the court's September 1, 1998 order. In its motion for certification, the Town asks this court to amend the September 1, 1998 order to certify it for appeal under § 1292(b). The motion for certification was fully briefed on November 2, 1998.
The issue before this court is whether the court should certify its September 1, 1998 order for immediate appeal. After careful consideration, the court finds that it should not for two reasons. First, the Town's motion for certification is untimely. Second, the Town has failed to show that the statutory criteria of § 1292(b) have been met.
A. The Town's motion for certification is untimely
An appeal under § 1292(b) can only be taken if the district court certifies the order for appeal and the court of appeals, in its discretion, permits the appeal to be taken. 28 U.S.C. § 1292(b). An application to appeal a district court's order under § 1292(b) must be filed in the court of appeals "within ten days after the entry of the order." 28 U.S.C. § 1292(b).
If a district court's order is not certified under § 1292(b) at the time that the order is entered, there are two different ways that the order may be certified. Weir v. Propst, 915 F.2d 283, 285-87 (7th Cir. 1990). First, the district court may amend the order to add a § 1292(b) certification, which can be done at any time. Buckley v. Fitzsimmons, 919 F.2d 1230, 1239 (7th Cir. 1991). The power to amend "must not be used promiscuously." Id. (citing Weir, 915 F.2d at 287). An amendment that will have the effect of extending the ten-day limitation period of § 1292(b) is proper "only if there is a reason for the delay." Buckley, 919 F.2d at 1239; Weir, 915 F.2d at 287. Second, the district court may issue an order certifying the order to be appealed provided that the certifying order is issued "quick on the heels of the order to be appealed." Weir, 915 F.2d at 286.
In Weir, the district court denied a motion by several defendants to dismiss them from the case. Weir, 915 F.2d at 285. The defendants did not appeal this order under § 1291 as they could have done; rather, sixty-three days later the defendants asked the judge either to reconsider his order or to certify it for appeal under § 1292(b). Id. The judge certified the order, and the defendants applied to the Seventh Circuit for permission to appeal. Id. Neither the parties nor the judge, however, presented any reason for the delay of the certification. Id. at 287. Finding the delay gratuitous and protracted, the Seventh Circuit did not allow the appeal under § 1292(b). Id.
In this case, the Town filed its motion for certification thirty days after the court entered its September 1, 1998 order and fourteen days after the court ordered the Town to file its answer to the College's second amended complaint. The Town has given only one reason for its delay in filing the motion for certification, which is that the motion "would have been filed by the Answer date, September 14, 1998, but for the fact that The Town during the preceding period was preparing its Memorandum for Summary Judgment in The Town of Cicero v. Morton College, 97 CH 14057, in Cook County Circuit Court." (Def.'s Mot. for Certification P 3.) That reason is insufficient to justify the delay. The court, not the Town, sets the schedule in this case. Further, the court cannot understand how the motion could not be filed given that the Town has three different law firms representing it in this case.
There is no sufficient reason for the Town's delay in filing this motion for certification. Thus, it would be an abuse of the court's power to amend the order at this late date. If the court were to amend its September 1, 1998 order or issue another order certifying the order for appeal under § 1292(b), the court would be taking an action that would undermine the ten-day limitation period of § ...