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’
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