Steshenko v. McKay et al
Filing
626
ORDER RE STATUS OF PROCEEDINGS DURING PENDENCY OF INTERLOCUTORY APPEAL AND ORDER DENYING MOTION TO REASSIGN. Signed by Judge Richard Seeborg on 10/23/13. (cl, COURT STAFF) (Filed on 10/23/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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For the Northern District of California
United States District Court
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GREGORY NICHOLAS STESHENKO,
Plaintiff,
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v.
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THOMAS MCKAY, et al.,
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No. C 09-5543 RS
ORDER RE STATUS OF
PROCEEDINGS DURING
PENDENCY OF
INTERLOCUTORY APPEAL AND
ORDER DENYING MOTION TO
REASSIGN
Defendants.
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____________________________________/
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While the various motions for summary judgment or partial summary judgment
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brought by plaintiff Gregory Steshenko and both sets of defendants were pending, Steshenko
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expressly requested that a ruling on his motion for preliminary injunction issue separately.
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Steshenko has now filed an appeal of the resulting order.
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One line of authority holds that “ordinarily” where an interlocutory order is
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immediately appealable, the filing of an appeal divests the trial court of jurisdiction to act.
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See, e.g., United States v. Claiborne, 727 F.2d 842, 850 (9th Cir. 1984), U.S. v. Hickey, 580
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F.3d 922, 926 (9th Cir. 2009). As explained in Claiborne, this is “a judge made rule
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originally devised in the context of civil appeals to avoid confusion or waste of time resulting
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from having the same issues before two courts at the same time.” 727 F.2d at 850. In
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contrast, other cases suggest it is “firmly established that an appeal from an interlocutory
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order does not divest the trial court of jurisdiction to continue with other phases of the case.”
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Plotkin v. Pacific Tel. and Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982).
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Reconciling these two seemingly conflicting threads turns on examining the
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relationship between the matter being appealed and the issues remaining to be adjudicated in
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the district court. Even Claiborne cautions that rule should not be employed to defeat its
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purpose, and that certain pre-trial matters can go sometimes forward in the trial court during
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For the Northern District of California
United States District Court
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an interlocutory appeal without creating potential problems. 727 F.2d at 850.
In the present case, Steshenko’s application for a preliminary injunction was premised
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on his contention that he necessarily will prevail on the merits of his second claim for relief,
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which alleges defendants violated his due process rights. Those same arguments underlie
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both Steshenko’s pending motion for partial summary judgment on that claim, and his
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opposition to defendants’ motion seeking summary judgment in their favor.
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As noted in a prior order, the standards for preliminary injunction and summary
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judgment are not the same, and the denial of injunctive relief to Steshenko is not equivalent
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to a finding that he cannot prevail on his second claim for relief. Thus, it is entirely possible
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that the Circuit court could uphold the decision to deny the preliminary injunction without
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passing on the merits of his underlying claim. The very goal of Steshenko’s appeal,
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however, is to obtain a ruling that his view of the merits of the due process claim is correct.
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Were he to succeed in that endeavor, the Circuit court’s ruling would be of tremendous
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consequence to the disposition of the pending motions. While such a decision by the
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appellate court might not compel that Steshenko’s pending motion be granted (given the
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differing standards), it likely at a minimum would preclude granting defendants’ motion, and
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certainly would provide substantial guidance as to the appropriate lens through which to
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analyze virtually all of the pending questions. Accordingly, this is an instance where the
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issues presented by the interlocutory appeal are so intertwined with the matters still pending
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in this court that effectively both courts would be dealing with the same questions at the same
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time. There are no “other phases” as to which it would be appropriate to proceed until the
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interlocutory appeal has been decided or dismissed.
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This case is now in its fourth year, a fact about which Steshenko has repeatedly
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complained. As noted in a recent order, his litigation strategies are not the sole cause of
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delay, although they have played a substantial role. In this instance, Steshenko has elected
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first to seek a preliminary injunction at this late date in the litigation, and then to take an
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interlocutory appeal. That is his right. The consequence, however, is that this Court must
abstain from taking further action until jurisdiction has been returned to it upon disposition of
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For the Northern District of California
United States District Court
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the appeal.
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For administrative purposes, the pending motions for summary judgment will be
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terminated. They will be automatically re-submitted for decision upon conclusion of the
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appeal, without the need for the parties to take any additional action. Pursuant to Civil Local
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Rule 7-1(b), Steshenko’s motion to reassign this action is suitable for disposition without oral
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argument, and the hearing set for November 21, 2013 is vacated. That motion, which is
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frivolous, is denied without prejudice.
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IT IS SO ORDERED.
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Dated: 10/23/13
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
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