Frazier et al v. Town of Mountain View, Colorado, The et al

Filing 96

ORDER denying 89 Plaintiffs Motion To Certify Defendants Appeal as Frivolous and/or Dilatory by Judge Robert E. Blackburn on 03/13/2009.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 06-cv-02272-REB-MJW P. CHRISTOPHER SWANSON, GERALDINE SCHMIDT, and JOANNE ROE, individually and on behalf of all persons similarly situated, Plaintiffs, v. THE TOWN OF MOUNTAIN VIEW, COLORADO, POLICE CHIEF ERIC GOMEZ, in his individual and official capacity, POLICE OFFICER DAVID GROFF, in his individual and official capacity, POLICE OFFICER HERNANDEZ, in his individual and official capacity, and POLICE OFFICER PEREZ, in his individual and official capacity, Defendants. ORDER DENYING MOTION TO CERTIFY APPEAL AS FRIVOLOUS Blackburn, J. This matter is before me on the Plaintiffs' Motion To Certify Defendants' Appeal as Frivolous and/or Dilatory [#89]1 filed April 15, 2008. The defendants filed a response [#91] and the plaintiffs filed a reply [#93]. I deny the motion. On March 20, 2008, I entered an order [#77] addressing the defendants' motion for summary judgment. In that order I denied the claim of defendants Gomez, Groff, Hernandez, and Perez that they are shielded from the plaintiffs' claims by qualified immunity. As permitted by law, the defendants have filed a notice of appeal to challenge my denial of Gomez, Groff, Hernandez, and Perez's claim of qualified
"[#89]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
1

immunity. That appeal is pending, and this case is stayed pending resolution of the appeal. In their present motion, the plaintiffs ask that I certify the defendants' appeal as frivolous and/or dilatory. If I so certify the appeal, then I may retain jurisdiction pending disposition of the appeal, arguably minimizing disruption of the proceedings on this case in this court. Behrens v. Pelletier, 516 U.S. 299, 310 - 311 (1996); Stewart v. Donges, 915 F.2d 572, 577 (10th Cir. 1990). Having reviewed the parties arguments, I conclude that the defendants' appeal of my qualified immunity determination is not so baseless that it is frivolous and dilatory. Thus, I deny the plaintiffs' motion. THEREFORE, IT IS ORDERED that the Plaintiffs' Motion To Certify Defendants' Appeal as Frivolous and/or Dilatory [#89] filed April 15, 2008, is DENIED. Dated March 13, 2009, at Denver, Colorado. BY THE COURT:

2