Zochlinski v. Blum et al

Filing 48

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 11/19/13 ORDERING the Clerk of Court to REOPEN this action; that not later than 12/11/13, plaintiff shall show cause why this action should not be dismissed on mootness grounds; no later than 12/27/13, defendants may file a reply to plaintiff's response to the order to show cause; the matter will thereafter stand submitted; and DENYING AS MOOT 43 Motion to Have Stay Maintained in Effect. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD ALAN ZOCHLINSKI,

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Plaintiff,

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No. 2:11-cv-03295 KJM KJN (PS)

v.

ORDER TO SHOW CAUSE

RICHARD C. BLUM, et al.,

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Defendants.

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On August 24, 2012, this action was stayed and defendants were directed to advise the

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court of the resolution of the state mandamus proceedings. ECF No. 42 (noting that “[t]he

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gravamen of plaintiff’s claim is that he is entitled to a Ph.D. under the Three Paper Rule”). In

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determining that this action should be stayed, the court noted the following:
Pullman[1] abstention is appropriate where:

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(1) The complaint touches a sensitive area of social policy
upon which the federal courts ought not to enter unless no
alternative to its adjudication is open.

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(2) Such constitutional adjudication plainly can be avoided
if a definitive ruling on the state issue would terminate the
controversy.

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(3) The possibly determinative issue of state law is doubtful.

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Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941).
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Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 409
(9th Cir. 2006). Here, plaintiff has filed a writ of mandate in the
state court concerning conferral of a Ph.D. degree pursuant to the
Three Paper Rule. As the court notes in Case No. 08-cv-0024LEW-CKD, whether plaintiff has a vested property interest in
conferment of a Ph.D. is an unclear matter of state law. Absent that
right, plaintiff may not maintain this action.
Accordingly,
abstention under Pullman is appropriate.

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Id. at 5-6. On July 17, 2013, defendants filed a notice of final resolution of the state mandamus

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proceedings, and included copies of the relevant state court decisions. ECF No. 44. In light of

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the Superior Court’s judgment in favor of the Regents of the University of California in the state

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mandamus action, it appears that plaintiff’s claims in this action are moot. See ECF No. 46-1 at 6

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(Superior Court’s judgment concluding that “there is no evidence in the record to show that it was

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arbitrary or capricious for the Student Petitions Subcommittee to refuse to retroactively grant

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[plaintiff] his Ph.D. degree under the [Three Paper Rule] under the circumstances in this case.”).

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Therefore, plaintiff will be ordered to show cause why this action should not be dismissed.
In the interim, on June 5, 2013, plaintiff filed a motion to have the court’s stay maintained

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in effect pending resolution of his forthcoming writ of certiorari with the Supreme Court of the

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United States. ECF No. 43. Defendants filed an opposition thereto. ECF No. 45. A review of

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the status of plaintiff’s petition for a writ of certiorari shows that the United States Supreme Court

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denied the petition on October 15, 2013. See Zochlinski v. Regents of the Univ. of California,

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No. 13-5664, 2013 WL 4014001 (U.S. Oct. 15, 2013). Thus, plaintiff’s motion to have the stay

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maintained in effect will be denied as moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to reopen this action;

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2. No later than December 11, 2013, plaintiff shall show cause why this action should not

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be dismissed on mootness grounds;
3. No later than December 27, 2013, defendants may file a reply to plaintiff’s response to

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the order to show cause;
4. The matter will thereafter stand submitted; and

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/////
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5. Plaintiff’s June 5, 2013, motion to have the stay maintained in effect (ECF No. 43) is

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denied as moot.

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Dated: November 19, 2013

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zoch3295.osc

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