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Does v. University of Washington

United States District Court, W.D. Washington, Seattle

January 16, 2018

JANE DOES 1-10, et al., Plaintiffs,
v.
UNIVERSITY OF WASHINGTON, et al., Defendants.

          ORDER FOLLOWING SECOND APPEAL

          JAMES L. ROBART, United States District Judge

         I. INTRODUCTION

         Before 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.

         II. BACKGROUND AND ANALYSIS

         A 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).

         While 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 . . . .”).)

         Similar 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.

         Mr. 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.

         In 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)), [1] and 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.)[2]

         Because 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, [3] Mr. Daleiden's motion for relief from the deadline to respond to Doe ...


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