Donahoe et al v. Arpaio et al

Filing 466

ORDER: #376 Defendants Lisa Aubuchon and Peter R. Pestalozzi's Motion for Stay Pending Appeal Pursuant to Rule 8(a), Federal Rules of Appellate Procedure, joined by Defendants Andrew and Ann Thomas (Doc. 378), is denied. See order for complete details. Signed by Judge Neil V Wake on 6/7/12. (NKS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Gary Donahoe and Cherie Donahoe, husband and wife, ) ) ) ) ) ) ) ) ) ) ) Lead No. CV 10-02756-PHX-NVW ) ) ) ) ) ) ) ) ) ) ) No. CV 10-02758-PHX-NVW Conley D. Wolfswinkel, a single man, ) et al., ) ) Plaintiffs, ) ) v. ) ) Sheriff Joseph Arpaio and Ava ) Arpaio, husband and wife, et al., ) ) ) Defendants. ) No. CV 11-00116-PHX-NVW Plaintiffs, 11 12 v. 13 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife, et al., 14 15 Defendants. 16 Sandra Wilson and Paul Wilson, husband and wife, 17 Plaintiffs, 18 v. 19 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife, et al., 20 21 22 23 24 25 26 27 28 Defendants. Consolidated with: 1 2 Donald T. Stapley, Jr. And Kathleen Stapley, husband and wife, Plaintiffs, 3 4 v. 5 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife, et al., 6 Defendants. 7 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-00902-PHX-NVW ORDER 8 Before the Court is Defendants Lisa Aubuchon and Peter R. Pestalozzi’s Motion 9 10 for Stay Pending Appeal Pursuant to Rule 8(a), Federal Rules of Appellate Procedure 11 (Doc. 376), joined by Defendants Andrew and Ann Thomas (Doc. 378). Plaintiffs Gary 12 and Cherie Donahoe and Sandra and Paul Wilson filed a response joined by Plaintiffs 13 Donald T. Stapley, Jr., and Kathleen Stapley. (Docs. 442, 445.) Defendants Lisa 14 Aubuchon and Peter R. Pestalozzi filed a reply joined by Defendants Andrew and Ann 15 Thomas. (Docs. 452, 453.) Oral argument on the motion was heard on June 1, 2012. 16 I. Background 17 On April 9, 2012, motions to dismiss by Defendants Lisa Aubuchon and Peter R. 18 Pestalozzi (hereafter “Aubuchon”) and Defendants Andrew and Ann Thomas (hereafter 19 “Thomas”) were granted in part and denied in part. (Doc. 338.) The April 9, 2012 Order 20 found that Thomas and Aubuchon’s actions related to filing a civil RICO lawsuit were not 21 protected by absolute prosecutorial immunity, explaining that absolute immunity 22 generally protects only those actions by a prosecutor that are “intimately associated with 23 the judicial phase of the criminal process.” Absolute prosecutorial immunity has been 24 applied to government attorneys for bringing civil enforcement proceedings pursuant to 25 their statutory duties, but only where the government attorney’s function is directly 26 analogous to his or her function in a criminal proceeding. Here, Defendants filed a civil 27 lawsuit under the federal RICO statute, which gives the United States Attorney General 28 -2- 1 authority to bring enforcement actions, but does not provide special enforcement 2 authority to state officers. Thus, Defendants were in the same position as other state 3 officers and private lawyers seeking money damages and injunctive relief in a federal 4 civil RICO lawsuit and not protected by absolute prosecutorial immunity. 5 On May 4, 2012, Aubuchon and Thomas filed notices appealing a portion of the 6 April 9, 2012 Order regarding the issue of absolute immunity in connection with the 7 filing of the civil RICO action. (Docs. 375, 377.) On the same day, Aubuchon filed a 8 motion for stay pending appeal, which Thomas joined. (Docs. 376, 378.) Aubuchon and 9 Thomas request a stay of discovery as to the counts pertaining to the civil RICO action 10 only: 11 Aubuchon seeks only to stay certain counts as to the narrow issue of the filing of the RICO lawsuit, not as to any alleged underlying actions which may simultaneously support those counts. Aubuchon seeks a narrowly drawn stay order which would prevent discovery on the issue of the filing of the RICO action. Such stay would apply only to any inquiry surrounding the preparation, filing, prosecution and dismissal of the RICO action itself. Aubuchon does not seek a stay regarding the various investigations/ transactions that are the subject of the RICO suit. 12 13 14 15 (Doc. 452 at 3.) 16 II. Legal Standard 17 Under the collateral order doctrine, a small class of district court decisions are 18 considered final decisions subject to immediate appeal under 28 U.S.C. § 1291. Mitchell 19 v. Forsyth, 472 U.S. 511, 524-25 (1985). “[T]he denial of a substantial claim of absolute 20 immunity is an order appealable before final judgment, for the essence of absolute 21 immunity is its possessor’s entitlement not to have to answer for his conduct in a civil 22 damages action.” Id. at 525. The question of absolute immunity is separate from the 23 merits of the underlying action even though a reviewing court must consider the 24 plaintiff’s factual allegations to resolve the question. Id. at 528-29. 25 The Supreme Court has expressed the importance of avoiding excessive disruption 26 of government by “broad-ranging discovery and deposing of numerous persons, including 27 28 -3- 1 an official’s professional colleagues” before the district court has resolved the threshold 2 immunity question. Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982); see also Mitchell, 3 472 U.S. at 526. But neither Mitchell nor Harlow addressed whether discovery must be 4 limited after the district court has decided the threshold immunity question while the 5 immunity decision is on appeal. 6 In the Ninth Circuit, the interlocutory appeal of denial of immunity normally 7 divests the district court of jurisdiction to proceed with trial. United States v. Claiborne, 8 727 F.2d 842, 850 (9th Cir. 1984); Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992). 9 However, 10 11 12 This divestiture of jurisdiction rule is not based on statutory provisions or the rules of civil or criminal procedure. Instead, it is a judge made rule originally devised in the context of civil appeals to avoid confusion or waste of time resulting from having the same issues before two courts at the same time. Given this purpose, it has been suggested that the rule should not be employed to defeat its purpose or to induce needless paper shuffling. 13 Claiborne, 727 F.2d at 850 (internal quotation marks and citations omitted); see also 14 Goshtasby v. Bd. of Trustees of the Univ. of Illinois, 123 F.3d 427, 428 (7th Cir. 1997) 15 (stay upon interlocutory appeal to assert colorable claim to absolute or qualified immunity 16 is not based upon any formal division of “jurisdiction” between trial and appellate courts). 17 To minimize disruption and delay of trial court proceedings, the Ninth Circuit and 18 other circuit courts have adopted the rule that if the district court finds that the 19 defendants’ claim of qualified immunity is frivolous or has been waived, the district court 20 may certify that the defendants have forfeited their right to pretrial appeal and proceed 21 with trial. Chuman, 960 F.2d at 105; see Behrens, 516 U.S. at 310-11 (“This practice, 22 which has been embraced by several Circuits, enables the district court to retain 23 jurisdiction pending summary disposition of the appeal, and thereby minimizes disruption 24 of the ongoing proceedings.”). 25 Moreover, “[t]he Harlow right to immunity is a right to immunity from certain 26 claims, not from litigation in general.” Behrens v. Pelletier, 516 U.S. 299, 312 (1996). 27 28 -4- 1 Where an immunity defense applies to one claim and not another, the claims are separable 2 for purposes of the collateral order doctrine. Beier v. Cty. of Lewiston, 354 F.3d 1058, 3 1064 (9th Cir. 2004). The fact that defendants will have to endure discovery and trial on 4 some claims does not defeat the appellate court’s jurisdiction to review the denial of 5 qualified immunity on other claims. Id.; see Alice L. v. Dusek, 492 F.3d 563, 565 (5th 6 Cir. 2007) (pending interlocutory appeal of denial of qualified immunity, to the extent 7 defendant was subject to discovery requests on claims for which she does not or cannot 8 assert qualified immunity, such discovery requests did not implicate her right to qualified 9 immunity). 10 It is concluded, therefore, that when a public official files an interlocutory appeal 11 from the denial of a non-frivolous claim to absolute immunity, the district court may not 12 alter the decision on appeal, i.e., the denial of immunity, which is separate from the merits 13 of the underlying litigation. But the district court may exercise discretion regarding 14 pretrial discovery, considering the possibility of compromising any immunity protection 15 the defendants may have and avoiding unnecessary disruption of the ongoing 16 proceedings. 17 III. 18 Analysis Thomas and Aubuchon’s claim of absolute immunity seeks a sweeping extension 19 of absolute prosecutorial immunity beyond existing law. But the Court does not find it is 20 frivolous or has been waived and does not certify that they have forfeited their right to 21 pretrial appeal. See Chuman, 960 F.2d at 105. However, for reasons previously stated, 22 Thomas and Aubuchon’s claim of absolute immunity for the civil RICO claim is unlikely 23 to succeed on the merits. Thus, staying a narrow portion of discovery as requested likely 24 would require a second round of discovery after the denial of immunity is affirmed on 25 appeal. 26 27 28 Further, granting Thomas and Aubuchon’s motion to stay discovery would at most slightly reduce their immediate discovery burden. Their claim of absolute immunity on -5- 1 appeal does not permit them to avoid testifying as fact witnesses regarding the civil RICO 2 claim as it relates to Defendant Arpaio. In their briefs and oral argument, Thomas and 3 Aubuchon’s attorneys were not able to provide any concrete examples of discovery that 4 would be stayed. The difficulty in articulating practical boundaries of the requested 5 discovery stay demonstrates that a stay would not only disrupt ongoing proceedings, but 6 likely complicate discovery, resulting in additional cost and delay. In contrast, denying 7 the stay would not substantially increase Thomas and Aubuchon’s discovery burden. 8 9 Thomas and Aubuchon seek a narrowly drawn discovery stay that is unnecessary to preserve the decision on appeal, not likely to provide them any practical benefit, and 10 likely to cause confusion, disruption, and increased expense of ongoing proceedings. 11 Their motion to stay pretrial discovery related to the civil RICO claim will therefore be 12 denied. 13 IT IS THEREFORE ORDERED that Defendants Lisa Aubuchon and Peter R. 14 Pestalozzi’s Motion for Stay Pending Appeal Pursuant to Rule 8(a), Federal Rules of 15 Appellate Procedure (Doc. 376), joined by Defendants Andrew and Ann Thomas (Doc. 16 378), is denied. 17 DATED this 7th day of June, 2012. 18 19 20 21 22 23 24 25 26 27 28 -6-

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