United States District Court, W.D. Washington, Seattle
ORDER FOLLOWING SECOND APPEAL
L. ROBART, United States District Judge
the court is Defendant David Daleiden's second notice of
appeal (2d Notice of Appeal (Dkt. # 147)) regarding the
court's order issuing a preliminary injunction (PI Order
(Dkt. # 88)) and the court's order reissuing the
preliminary injunction following remand from the Ninth
Circuit Court of Appeals (Reissued PI Order (Dkt. # 130)). In
addition, there are several pending motions, including: (1)
Plaintiffs John Does 1-10 and Jane Does 1-10's
(collectively, “Doe Plaintiffs”) motion to
certify a class (MCC (Dkt. # 16)); (2) Mr. Daleiden's
motion to clarify the preliminary injunction (MTC (Dkt. #
131)); (3) Doe Plaintiffs' motion for summary judgment
and entry of a permanent injunction (MSJ (Dkt. # 135)); and
(4) Mr. Daleiden's motion for relief from the deadline to
respond to Doe Plaintiffs' motion for summary judgment
(MFR (Dkt. # 140)). The purpose of this motion is to clarify
the court's jurisdiction over these motions and the
conduct of this litigation while Mr. Daleiden's second
appeal is pending.
BACKGROUND AND ANALYSIS
notice of appeal generally “confers jurisdiction on the
court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Disc.,
Co., 459 U.S. 56, 58 (1982) (per curiam). However,
“an appeal of an interlocutory order does not
ordinarily deprive the district court of jurisdiction except
with regard to the matters that are the subject of the
appeal.” Britton v. Co-op Banking Grp., 916
F.2d 1405, 1412 (9th Cir. 1990); see also Fed. R.
Civ. P. 62(a)(1). Accordingly, the Ninth Circuit's
jurisdiction under 28 U.S.C. § 1292(a)(1), which permits
appeals from preliminary injunctions, “extends only to
matters inextricably bound up with the injunctive order from
which the appeal is taken.” Paige v. State of
Cal., 102 F.3d 1035, 1039 (9th Cir. 1996) (internal
citations and quotation marks omitted).
the court's initial preliminary injunction order was on
appeal, the court issued an order to show cause asking
“why Mr. Daleiden's motion to dismiss
[Plaintiffs' third amended complaint] should not be taken
off the court's calendar without prejudice to renoting
the motion after the Ninth Circuit enters a ruling or
otherwise disposes of Mr. Daleiden's appeal?” (OSC
(Dkt. # 99) at 2.) Mr. Daleiden agreed at that time that his
motion should be stayed while the preliminary injunction was
on appeal, and the other parties did not object. (Daleiden
Resp. (Dkt. # 104) at 1 (“Mr. Daleiden agrees . . .
that his Motion to Dismiss . . . addresses issues involved
with the interlocutory appeal and that his Motion should be
taken off the calendar . . . .”); Plf. Resp. (Dkt. #
101) at 1 (“Plaintiffs do not object to Mr.
Daleiden's motion to dismiss . . . being taken off the
[c]ourt's calendar . . . .”); UW Resp. (Dkt. # 103)
at 1 (“[Defendants University of Washington and Perry
M. Tapper (collectively, “UW Defendants”)] take
no position on whether Mr. Daleiden's motion to dismiss
should be taken off the court's calendar . . .
to Mr. Daleiden's motion to dismiss, Doe Plaintiffs'
motion for summary judgment and entry of a permanent
injunction addresses issues that are involved in Mr.
Daleiden's second appeal and inextricably bound up with
the reissued preliminary injunction order. (Compare
MSJ, with Reissued PI Order); see KPMG LLP v.
Kanam, No. 3:15-CV-00129-SLG, 2016 WL 7494262, at *2 (D.
Alaska Jan. 4, 2016) (“[W]hile the Court does retain
jurisdiction to modify or suspend a preliminary injunction,
the Court finds that [the plaintiff's] motion for summary
judgment seeking permanent injunctive relief would unduly
alter the status of the case on appeal and exceeds the
jurisdictional authority of the district court pending the
interlocutory appeal, as it would change the core question
before the appellate panel.”). Accordingly, the court
directs the clerk to remove this motion from the calendar,
but without prejudice to Doe Plaintiffs' re- noting or
refiling the motion, as appropriate, following the Ninth
Circuit's disposition of Mr. Daleiden's appeal.
Daleiden's motion to clarify the preliminary injunction
and Doe Plaintiffs' motion to certify a class, however,
are not inextricably bound with the issues on appeal.
(See MTC; MCC.) First, as to the motion to clarify,
Federal Rule of Civil Procedure 62(c) provides that
“[w]hile an appeal is pending from an interlocutory
order . . . that grants . . . an injunction, the court may
suspend, modify, restore, or grant an injunction . . .
.” Fed.R.Civ.P. 62(c). Further, the Ninth Circuit
instructs that the district court may continue to supervise
and administer the preliminary injunction while an appeal is
pending. See A&M Records, Inc. v. Napster, Inc.,
284 F.3d 1091, 1099 (9th Cir. 2002) (concluding that the
district court is authorized to continue supervising
compliance with the injunction while an appeal is pending).
Additionally, the court concludes that it has jurisdiction to
consider Doe Plaintiffs' motion for class certification
while Mr. Daleiden's second appeal is pending. See
Tustin v. Heckler, 749 F.2d 1055, 1065-66 (3d Cir. 1984)
(concluding that the court of appeals did not have
jurisdiction to review the class certification order because
it was not “inextricably bound” with the
preliminary injunction issues on appeal); see also United
States v. Pitner, 307 F.3d 1178, 1183 n.5 (9th Cir.
2002) (holding that “during an interlocutory appeal,
the district court retains jurisdiction to address aspects of
the case that are not the subject of the appeal.”).
Accordingly, these motions will remain on the court's
calendar, and the court will decide them in due course.
addition to the foregoing motions, the court also notes that
Mr. Daleiden asserts the need to conduct discovery with
respect to Doe Plaintiffs' motion for summary judgment.
(See generally MFR; see also MSJ Resp.
(Dkt. # 148) at 1-2; Breen Decl. (Dkt. # 148-1).) While this
case was on appeal the first time, the court stayed the
entire proceeding-except for the court's administration
and enforcement of the preliminary injunction. (See
Min. Entry (Dkt. # 109).) However, on August 22, 2017,
following the Ninth Circuit's remand order (9th Cir.
Order (Dkt. # 112)), the court lifted the stay (see
8/22/17 Order (Dkt. # 114) at 1 n.1). At that point, the
parties should have sought new deadlines for and otherwise
complied with the court's order to conduct an initial
Federal Rule of Civil Procedure 26(f) conference, produce
initial disclosures, and file a joint status report (JSR
Order (Dkt. # 57); see also 12/5/16 Order (Dkt. #
95) (extending the JSR Order deadlines into January 2017)),
Mr. Daleiden should have sought the discovery that he now
insists is essential to his summary judgment response.
Nevertheless, because the court stays its consideration of
Doe Plaintiffs' summary judgment motion, there is now
both time and opportunity for the parties to engage in
previously neglected discovery. Further, because the
court's consideration of Doe Plaintiffs' summary
judgment motion is stayed, there is little, if any, prejudice
to Doe Plaintiffs in moving ahead with this aspect of the
litigation. Accordingly, the court orders the parties to
comply with its order regarding initial disclosures and a
joint status report with the following revised deadlines:
Deadline for FRCP 26(f) Conference: 2/2/2018
Initial Disclosures Pursuant to FRCP 26(a)(1): 2/16/2018
Combined Joint Status Report and Discovery Plan as Required
by FRCP 26(f) and Local Civil Rule 26(f): 2/23/2018
(See JSR Order at 1.)
the court stays consideration of Doe Plaintiffs' motion
for summary judgment until after the Ninth Circuit disposes
of Mr. Daleiden's appeal and affords the parties an
opportunity to conduct discovery while the re-issued
preliminary injunction is on appeal,  Mr. Daleiden's motion
for relief from the deadline to respond to Doe