Smith v. City of Stockton et al

Filing 109

ORDER signed by District Judge Kimberly J. Mueller on 10/3/2018 IT IS SO ORDERED this case is STAYED pending a disposition of the appeal by the 9th Circuit; the Final Pretrial Conference is VACATED. Case Stayed(Reader, L)

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DANA A. SUNTAG (State Bar #125127)
JOSHUA J. STEVENS (State Bar # 238105)
HERUM\CRABTREE\SUNTAG
A California Professional Corporation
5757 Pacific Avenue, Suite 222
Stockton, California 95207
Telephone: [phone]/Facsimile: [phone]
[e-mail]
[e-mail]

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Attorneys for All Defendants

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Lori Rifkin, Esq. [S.B. #244081]
HADSELL STORMER & RENICK LLP
4300 Horton Street, #15
Emeryville, CA 94608
Telephone: [phone]/Facsimile: [phone]
Email: [e-mail]

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Dan Stormer, Esq. [S.B. #101967]
Brian Olney, Esq. [S.B. #298089]
HADSELL STORMER & RENICK LLP
128 N. Fair Oaks Ave.
Pasadena, CA 91103
Telephone: [phone]/Facsimile: [phone]
Emails: [e-mail]
[e-mail]

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Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

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NATHANIEL SMITH,
Plaintiff,

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vs.
CITY OF STOCKTON, OFFICER
PATRICK MAYER, OFFICER ROBIN
HARRISON, AND OFFICER MICHAEL
PEREZ IN THEIR INDIVIDUAL
CAPACITIES; AND CHIEF OF POLICE
ERIC JONES, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES,
Defendants

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Case No.: 2:15-CV-00363-KJM-AC
STIPULATION AND ORDER TO STAY
CASE PENDING APPEAL
[No hearing required]

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STIPULATION TO STAY CASE PENDING APPEAL

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Plaintiff Nathaniel Smith and all Defendants (City of Stockton police

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officers Patrick Mayer, Robin Harrison, and Michael Perez, Chief of Police Eric Jones,

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and the City of Stockton) respectfully submit this stipulation to stay this case pending

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Defendants’ appeal.

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RECITALS
A.

On February 12, 2015, Plaintiff filed this lawsuit. His operative

pleading is his Second Amended Complaint (Doc. No. 38).
B.

On July 21, 2017, all Defendants filed a motion for summary

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judgment or partial summary judgment. (Doc. Nos. 74-80). The motion argued, among

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other things, the individual defendants are entitled to qualified immunity and the City is

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entitled to summary judgment on Plaintiff’s Monell claim against it.

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C.

Plaintiff filed an opposition to the motion (Doc. No. 82) and

Defendants filed a reply. (Doc. No. 85).
D.

On November 17, 2017, the Court held a hearing on the motion. At

the conclusion of the hearing, the Court took the motion under submission.
E.

On August 13, 2018, the Court issued an order granting the motion

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in part and denying it in part. As part of its order, the Court expressly denied qualified

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immunity to the three Officers. (Doc. No. 95).

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F.

On September 12, 2018, all Defendants timely filed a notice of

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appeal with the Ninth Circuit (Doc. No. 103). Defendants claim that Mitchell v. Forsyth,

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472 U.S. 511, 530 (1985), and its progeny hold that a district court’s denial of qualified

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immunity is immediately appealable, and Huskey v. City of San Jose, 204 F.3d 893 (9th

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Cir. 2000), and its progeny, allow a public entity to join an interlocutory appeal of the

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denial of qualified immunity where the issues are “inextricably intertwined.”

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G.

Counsel for Defendants contacted counsel for Plaintiff and stated

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Defendants intended to file a motion to stay this case pending the appeal and asked to

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meet and confer before filing the motion. Defendants assert the motion to stay would be

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STIPULATION TO STAY CASE PENDING APPEAL

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based on the rule that the filing of a notice of appeal “divests the district court of its

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control over those aspects of the case involved in the appeal.” Griggs v. Provident

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Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam), quoted in Plata v.

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Schwarzenegger, 2009 WL 799392, p. 10 (N.D. Ca. 2009); Chuman v. Wright, 960 F.2d

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104 (9th Cir. 1992).

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H.

The parties met and conferred telephonically on September 21,

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2018. Plaintiff’s counsel stated that Plaintiff does not agree that Defendants have the

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right to appeal denial of summary judgment on the City’s Monell claim as an

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interlocutory appeal, and that Plaintiff does not agree that this Court is divested of

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jurisdiction of any issues in this case other than the qualified immunity issues.

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Nonetheless, Plaintiff agreed to stipulate to stay the entire action pending appeal in

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order to avoid the costs and inefficiencies of piecemeal litigation.

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I.

There is no trial date. By stipulated order issued on September 12,

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2018, the Court rescheduled the final pretrial conference for December 21, 2018. (Doc.

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No. 102).

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STIPULATION
IT IS STIPULATED AND AGREED by the parties, through their counsel of

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record, that this Court stay this case pending the Ninth Circuit’s ruling disposing of the

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appeal.

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Dated: September 27, 2018

HERUM\CRABTREE\SUNTAG
By: /s/ - Dana A. Suntag
Dana A. Suntag
Attorney for All Defendants

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Dated: September 27, 2018

HADSELL STORMER & RENICK LLP
By: /s/ - Lori Rifkin
Lori Rifkin
Attorney for Plaintiff

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STIPULATION TO STAY CASE PENDING APPEAL

ORDER

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Based on the foregoing stipulation, and good cause appearing therefor, IT

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IS ORDERED. This case is stayed pending a disposition of the appeal by the Ninth

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Circuit. The final pretrial conference is vacated.

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DATED: October 3, 2018.

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UNITED STATES DISTRICT JUDGE

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STIPULATION TO STAY CASE PENDING APPEAL