Paskenta Band of Nomlaki Indians et al v. Crosby et al

Filing 137

ORDER signed by Judge Garland E. Burrell, Jr., on 10/13/15 ORDERING that Defendants' request to certify for interlocutory appeal the August 14, 2015 ruling, denying Defendants' motion to dismiss for lack of subject matter jurisdiction, is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PASKENTA BAND OF NOMLAKI
INDIANS; and PASKENTA
ENTERPRISES CORPORATION,

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Plaintiffs,
v.
INES CROSBY; JOHN CROSBY;
LESLIE LOHSE; LARRY LOHSE;
TED PATA; JUAN PATA; CHRIS
PATA; SHERRY MYERS; FRANK
JAMES; UMPQUA BANK; UMPQUA
HOLDINGS CORPORATION;
CORNERSTONE COMMUNITY BANK;
CONERSTONE COMMUNITY BANCORP;
JEFFERY FINCK; GARTH MOORE;
GARTH MOORE INSURANCE AND
FINANCIAL SERVICES, INC.;
ASSOCIATED PENSION
CONSULTANTS, INC.; HANESS &
ASSOCIATES, LLC; ROBERT M.
HANESS; THE PATRIOT GOLD &
SILVER EXCHANGE, INC.; and
NORMAN R. RYAN,

No. 2:15-cv-00538-GEB-CMK

ORDER DENYING DEFENDANTS’
REQUEST FOR CERTIFICATION OF
RULING IN ORDER FOR
INTERLOCUTORY APPEAL

Defendants.

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Defendants request certification for immediate appeal,

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under U.S.C. §1292(b), of the ruling in the Court’s August 14,

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2015 order (“Order”), that denied Defendants’ motion to dismiss

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this action for lack of subject matter jurisdiction. (Order re

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Defs. Mot. To Dismiss, ECF 101.) Defendants also seek an order

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staying this action pending decision on the interlocutory appeal

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they seek to have certified.
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Defendants

argue

in

their

certification

motion

that

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“federal court subject matter jurisdiction does not extend to

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cases in which the court must resolve contested issues of tribal

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law.” (Def.’s Req. for Cert. of Order for Inter. App. (“Req.”) 1:

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16-17, ECF 109-1.) Specifically, Defendants contend: “It is only

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after this Court determines that [D]efendants contravened tribal

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law that it could reach the broader question of whether in so

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doing [D]efendants also violated federal and state law.” (Req.

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8:4-6.) However, Defendants fail to state what “tribal law” has

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to be determined in this action; nor why whatever “tribal law” is

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referenced

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claims.

has

to

be

decided

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in

connection

with

Plaintiffs’

LEGAL STANDARD

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“Section 1292(b) provides a mechanism by which litigants can

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bring an immediate appeal of a non-final order upon the consent

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of both the district court and the court of appeals.” In re

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Cement Antitrust Litig., 673 F.2d 1020, 1025-26 (9th Cir. 1982).

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The district court may certify a ruling for interlocutory appeal

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only if three requirements are met: (1) “the order involves a

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controlling question of law,” (2) there is “substantial ground

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for difference of opinion” on that controlling question of law,

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and (3) “immediate appeal of the order may materially advance the

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ultimate termination of the litigation.” 28 U.S.C. §1292(b). “As

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Section 1292(b) is a departure from the general rule that only

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final judgments are appealable, it ‘therefore must be construed

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narrowly.’”

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00622-SKO,

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(quoting James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068

Zone
2013

Sports
WL

Ctr.,

3766749,

LLC

at

2

*4

v.

Rodriquez,

(E.D.

Cal

No.

July

1:11-cv-

16,

2013)

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n.6 (9th Cir. 2002)). The Ninth Circuit states that the provision

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in Section 1292(b) is “to be used only in exceptional situations

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in which allowing an interlocutory appeal would avoid protracted

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and expensive litigation.” In re Cement Antitrust Litig., 673

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F.2d at 1026. Further, the Supreme Court states “the appellant

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still ‘has the burden of persuading the court of appeals that

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exceptional

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policy of postponing appellate review until after the entry of a

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final judgment.’” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475

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(1978)(quoting Fisons, Ltd. V. United States, 458 F.2d 1241, 1248

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(7th Cir. 1972),rev’d on other grounds, Tidewater Oil Co. v.

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United States, 409 U.S. 151 (1972)).

circumstances

justify

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a

departure

from

the

basic

DISCUSSION

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Defendants have not shown that what they reference as

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“tribal law” in their motion for certification raises an actual

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issue of tribal governance necessary to adjudicate Plaintiffs’

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claims nor that any alleged involvement generates “a controlling

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question of law” as required by Section 1292(b). 28 U.S.C. §

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1292(b). See Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th

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Cir. 2011) (requiring that all of the requirements stated in

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§1292(b)

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Defendants make the following argument in their Reply Brief, “the

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controlling issue in this case is... whether a federal court has

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subject matter jurisdiction over federal claims that are premised

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on

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Plaintiffs

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arguing it is raised for the first time in Defendants’ Reply

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Brief, and if it is not stricken, they seek leave to file another

be

met

intra-tribal
move

in

order

disputes.”
to

strike

to

grant

(Pls’.
this

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certification).

Reply

stated

2:5-7,

basis

for

However,

ECF
the

125.)
motion,

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responsive brief. (ECF 126.) The Court need not consider an issue

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raised

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Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.

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1985).

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“intra-tribal disputes” and Plaintiffs have not shown that the

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referenced

disputes

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concerning

subject

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request to certify for interlocutory appeal the August 14, 2015

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ruling, denying Defendants’ motion to dismiss for lack of subject

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for

the

Further,

first

it

is

time

in

a

unclear

involve
matter

a

to

what

brief.

jurisdiction.

October 13, 2015

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Int’l

Plaintiffs’

“controlling

matter jurisdiction, is DENIED.
Dated:

reply

question

Therefore,

Union

refer

of

of

as

law”

Defendants’