UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRANS-INDUSTRIES, INC.,
Debtor,
RICHARD A. SOLON,
Appellant,
Case Number 10-10401
v. Honorable David M. Lawson
DAVID W. ALLARD,
Appellee,
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ORDER DISMISSING APPEAL
This matter is before the Court on an interlocutory appeal by defendant Richard Solon of an
order entered by the bankruptcy court denying a motion to strike a jury demand in an adversary
proceeding. The Trustee of debtor Trans-Industries, Inc. sued Solon and others, all of whom were
officers or otherwise affiliated with the bankrupt company, alleging that the defendants mishandled
the debtor’s employee benefit plan and caused damage to the plan beneficiaries. The complaint
alleged breach of fiduciary duty under the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001, et seq., and breach of contract under common law. The Trustee demanded a jury,
and Solon moved to strike the jury demand.
The appeal was argued in August 2010 and remains under advisement in this Court.
However, on May 17, 2011, the Court received a letter from counsel for the Trustee informing the
Court that the parties had stipulated to withdraw the jury demand, and the bankruptcy court had
entered an order to that effect withdrawing the jury demand. The bankruptcy court’s order was
made a part of the record in this Court.
Withdrawal of the jury demand renders moot the issue before the Court and deprives the
Court of appellate jurisdiction. The doctrine of mootness is an extension of the Constitution’s
standing requirement and is part of the “irreducible constitutional minimum” necessary for a
justiciable case or controversy under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). “[A] federal court has a continuing duty to ensure that it adjudicates only genuine disputes
between adverse parties,” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 584 (6th Cir. 2006),
and must question mootness at “every stage of a case,” McPherson v. Mich. High Sch. Athletic
Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc). “Mootness results when events occur
during the pendency of a litigation which render the court unable to grant the requested relief.”
Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986); see also United States v. City of Detroit,
401 F.3d 448, 450-51 (6th Cir. 2005) (noting that “mootness generally depends on ‘whether the
relief sought would, if granted, make a difference to the legal interests of the parties’” (quoting
McPherson, 119 F.3d at 458)); In re DSC, Ltd., 486 F.3d 940, 945 (6th Cir. 2007) (noting that a
claim is moot “when it is factually, not legally, impossible to receive such relief” (internal citations
and quotation marks omitted)). “If ‘the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome,’ then the case is moot and the court has no jurisdiction.”
Libertarian Party of Ohio, 462 F.3d at 584 (quoting Los Angeles Cnty. v. Davis, 440 U.S. 625, 631
(1979)). “A federal court has no authority to render a decision upon moot questions or to declare
rules of law that cannot affect the matter at issue.” Cleveland Branch, N.A.A.C.P. v. City of Parma,
263 F.3d 513, 530 (6th Cir. 2001) (citing Church of Scientology v. United States, 506 U.S. 9, 12
(1992)).
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When a party resolves or abandons an issue raised on appeal, there is no live controversy left
to adjudicate. See Remus Joint Venture v. McAnally, 116 F.3d 180, 185 (6th Cir. 1997) (“[O]ur
decision that no Article III case or controversy exists rests on a simple fact: plaintiffs voluntarily
have abandoned an argument that was necessary for them to prevail in this federal court action.”);
Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 215 (1st Cir. 1987) (“[W]e are
presented with an appeal from the dismissal of a count which the plaintiff no longer wishes to
litigate. Such an appeal does not present a live controversy.”). “‘The test for mootness “is whether
the relief sought would, if granted, make a difference to the legal interests of the parties. . . .”’”
McPherson, 119 F.3d at 458 (quoting Crane v. Indiana High Sch. Athletic Ass’n, 975 F.2d 1315,
1318 (7th Cir. 1992)). This Court is not able to render any meaningful relief to the appellant
because he already has gained by agreement that which he seeks on appeal. Any opinion the Court
would render on the propriety of the jury demand — since withdrawn — would be merely advisory.
It has been observed generally that “voluntary cessation of a challenged practice does not
moot a case.” Cooey v. Strickland, 588 F.3d 924, 926 (6th Cir. 2009) (quoting League of Women
Voters of Ohio v. Brunner, 548 F.3d 463, 473 (6th Cir. 2008)). However, in this case, the jury
demand was withdrawn by stipulation, effectuating a settlement of the legal issue. When mootness
results from settlement, the Court must dismiss the appeal, although it does not necessarily vacate
the lower court’s ruling. See Alvarez v. Smith, 558 U.S. ---, ---, 130 S. Ct. 576, 581-82 (citing U.S.
Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21 (1994)).
Withdrawal of the jury demand renders the present appeal moot, and neither party has
standing to proceed with it. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (holding that the
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standing requirement limits federal courts to addressing “only actual, ongoing cases or
controversies”). The Court, therefore, has no subject matter jurisdiction to adjudicate the claim
raised by the appellant.
Accordingly, it is ORDERED that the appeal is DISMISSED as moot.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: May 24, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 24, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL
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