Myers v. Brewer et al

Filing 44

ORDER granting 39 Motion to Stay Discovery. Signed by Magistrate Judge James P. O'Hara on 8/3/2018. (srj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KRISTINA MYERS,
Plaintiff,
v.

Case No. 17-2682-CM

VIRGIL BREWER, et al.,
Defendants.
ORDER
Defendant Virgil Brewer has filed a notice of appeal (ECF No. 36) of the
memorandum and order entered by the presiding U.S. District Judge, Carlos Murguia,
that, in relevant part, denied him qualified immunity (ECF No. 35). Defendant has also
filed a motion to stay discovery and further court proceedings pending appeal (ECF No.
39). Plaintiff opposes the motion, asking the court to certify the appeal as frivolous
and/or dilatory.
“[A]n interlocutory appeal from an order refusing to dismiss on … qualified
immunity grounds relates to the entire action and, therefore, it divests the district court of
jurisdiction to proceed with any part of the action against an appealing defendant.”1
Recognizing that such interlocutory appeals may be subject to abuse, the Tenth Circuit
has held that the district court may regain jurisdiction if it takes the affirmative step of
certifying the appeal as frivolous.2

1

Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990).

2

Id. at 577.

The court observes plaintiff-appellee has filed a motion to dismiss the appeal,
claiming the Tenth Circuit lacks jurisdiction for essentially the reasons set forth in
plaintiff’s opposition to the motion to stay.3 The Tenth Circuit directed defendantappellant to respond to the motion to dismiss by July 30, 2018, and defendant-appellant
has filed a response.4 In light of plaintiff’s motion pending before the Tenth Circuit, and
the “axiomatic premise that a ‘federal district court and a court of appeals should not
attempt to assert jurisdiction over a case simultaneously,”5 defendant’s motion to stay is
granted.
IT IS HEREBY ORDERED:
1.

Defendant Brewer’s motion to stay (ECF No. 39) is granted.

2.

The parties are directed to file a joint status report within 5 business days

after defendant Brewer’s interlocutory appeal has been concluded, whether by ruling on
plaintiff’s motion to dismiss, or by ruling on the merits of qualified immunity.
IT IS SO ORDERED.
Dated August 3, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

3

Case No. 18-3145, Doc. 010110026020.

4

Case No. 18-3145, Docs. 010110026280 and 010110029867, respectively.

5

Stewart, 915 F.2d at 574.