Engel v. Buchan et al

Filing 155

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/8/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY ENGEL,
Plaintiff,
v.
ROBERT BUCHAN, et al.,
Defendants.

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No. 10 C 3288

MEMORANDUM OPINION AND ORDER
On March 29, 2011 defendant Robert Buchan (“Buchan”)
appealed this Court’s denial of qualified immunity from the
Bivens claim advanced against Buchan and several codefendants
(including the United States) by plaintiff Gary Engel (“Engel”).1
Upon filing his notice of appeal, Buchan moved in this Court for
a stay of proceedings pending resolution of the appeal.

What

follows is the ruling on that motion.
Although the concept of “jurisdiction” can resemble Joseph’s
coat of many colors in different contexts (Apostol v. Gallion,
870 F.2d 1335, 1337-38 (7th Cir. 1989)), the notice of an
interlocutory appeal from a denial of qualified immunity divests
the district court of jurisdiction to proceed with a trial on the
merits (id. at 1338).

That approach “also protects a public

official from burdensome pretrial proceedings, most notably
discovery” (May v. Sheahan, 226 F.3d 876, 880 (7th Cir. 2000)).

1

That was Buchan’s second qualified immunity appeal, the
first having been dismissed for lack of jurisdiction (Engel v.
Buchan, No. 10-3642 (7th Cir. Dec. 21, 2010)).

In light of that clear directive, these proceedings are
appropriately stayed as to defendant Buchan during the pendency
of his appeal.
Interlocutory appeals by a defendant do not, however,
perforce divest the district court of jurisdiction over claims
brought against other defendants--that is, issues that are not
“aspects of the case involved in the appeal” (Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982)(per curiam)).
Instead Apostol, 870 F.2d at 1338-39 has persuasively explained
numerous grounds for not imposing a stay vis-a-vis non-appealing
defendants.

And May, which Buchan unconvincingly cites for the

purported proposition that all proceedings must be stayed pending
appeal, actually confirms the appropriateness of limiting the
scope of such a stay (226 F.3d at 880 n.2):
The scope of the divestiture of jurisdiction effected
by a Forsyth [qualified immunity] appeal is limited,
however, The district court has authority to proceed
forward with portions of the case not related to the
claims on appeal, such as claims against other
defendants or claims against the public official that
cannot be (or simply are not) appealed. Still, a
district court might find it best to stay an entire
case pending the resolution of a Forsyth appeal. See,
e.g., Monfils v. Taylor, 165 F.3d 511, 518-19 (7th cir.
1998).2

2

[Footnote by this Court] In Monfils the district court
had conducted a jury trial of a defendant in the face of that
official’s interlocutory appeal of qualified immunity (id. at
518-19). And while that court endeavored to avoid the
constitutional issues tied up in the appeal, there was some
unfortunate (and perhaps inevitable) overlap (id. at 519).
Obviously the complexity occasioned by the jury trial in Monfils
2

That last sentence teaches that the issue is left to the
sound discretion of the district court.

And here the Apostol-

stated considerations, coupled with the later-mentioned fact that
Buchan’s counsel also represents the non-appealing codefendant
United States (their substantive interests are, after all,
parallel) and can obviously be counted on to protect Buchan’s
interests in the ongoing discovery process, point strongly
against an overall stay of the case.

Accordingly all parties

except Buchan are ordered to proceed with discovery.

And to the

extent that Buchan is requesting the unwarranted stay of all
proceedings as to all parties, his motion is denied.
As this Court has previously stated both in writing and from
the bench, this lawsuit has dragged on too long, with the
attendant problems of increased cost and a potential for the loss
of evidence (see Goshtasby v. Bd. of Trs. of the Univ. of Ill.,
123 F.3d 427, 428 (7th Cir. 1997)).

On the other side of the

ledger, Buchan can point to no prejudice in permitting discovery
to proceed as to the other parties.

It is surely worth noting

that Buchan’s counsel also represents the United States, so that
the prospect of his interests being harmed by the taking of
discovery during the pendency of the appeal is remote, if not in
fact nonexistent.

is very different from what is contemplated here--the mere
continuation of discovery as to defendants other than Buchan.
3

Hence Buchan’s motion is granted to the extent that
proceedings are stayed as to him individually, but is denied in
that discovery will continue to proceed as to the other parties.
Finally, as stated orally in court on June 7, 2011 the parties
are ordered to appear (telephonically, if need be) for a status
conference on August 12, 2011.3

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

June 8, 2011

3

Buchan’s previous motion to stay was denied by this Court
because his appeal on qualified immunity grounds was deemed to be
legally frivolous (Dkt. 88). While this Court’s view of the
potential success of Buchan’s current appeal remains unchanged
for several reasons, the importance of the intersection of Bivens
and Brady to the United States Department of Justice and its
federal agents has persuaded this Court that the appropriate
course of action is to await the Seventh Circuit’s ruling.
4