Burgan et al v. Nixon et al

Filing 48

ORDER ADDRESSING DEFENDANTS' MOTIONS TO STAY PROCEEDINGS PENDING APPEAL and PLAINTIFFS' MOTION TO CERTIFY APPEAL AS FRIVOLOUS. Signed by Magistrate Judge Carolyn S Ostby on 11/7/2016. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WILLIAM D. BURGAN, LYNETTE
BURGAN,
Plaintiffs,
vs.
ALEXANDER NIXON, THOMAS
RIEGER, CARBON COUNTY,

CV 16-61-BLG-CSO
ORDER ADDRESSING
DEFENDANTS’ MOTIONS
TO STAY PROCEEDINGS
PENDING APPEAL
and
PLAINTIFFS’ MOTION TO
CERTIFY APPEAL AS
FRIVOLOUS

Defendants.

The following three motions are before the Court for ruling:
1.

to stay proceedings pending appeal filed by Defendants Carbon
County Attorney Alexander1 Nixon (“Nixon”) and former Carbon
County Sheriff Thomas Rieger (“Rieger”), ECF No. 29;

2.

to stay proceedings pending appeal filed by Defendant Carbon
County (“the County”), Montana, ECF No. 31; and

3.

to certify as frivolous the appeal filed by Plaintiffs William D.
Burgan (“Bill Burgan” or “Burgan”) and Lynette Burgan
(collectively, the “Burgans”), ECF No. 35.2

1

As noted previously, Nixon represents that his first name is
“Alex,” not “Alexander.” See ECF No. 12 at 6, n.1.
2

A fourth motion – Defendants’ Joint Motion to Dismiss Plaintiffs’
Amended Complaint (ECF No. 33) – is not addressed herein.

For the reasons discussed below, the Court: (1) denies the motion
to certify the appeal as frivolous; (2) grants the motion to stay
proceedings pending appeal filed by Nixon and Rieger; and (3) grants
the County’s motion to stay proceedings pending appeal.
I.

Background3
On August 23, 2016, the Court issued an Order granting in part

and denying in part Defendants’ joint Rule 12(b)(6)4 motion to dismiss.
Order Addressing Defts’ Joint Mtn. to Dismiss (ECF No. 19) 49-50. The
Court granted the motion, without prejudice, to the extent that it
sought dismissal of Plaintiff Lynette Burgan’s claims. But the Court
denied the motion to the extent that it sought determinations that: (1)
Nixon was entitled to absolute immunity as a prosecutor, id. at 24-26;
(2) Nixon and Rieger were entitled to qualified immunity for claims
that they violated the U.S. Constitution, id. at 27-39; (3) Bill Burgan’s

3

In its Order addressing Defendants’ joint motion to dismiss, the
Court set out this matter’s background as alleged in Plaintiffs’
Complaint. ECF No. 19 at 2-14. The Court will not repeat the
background here except as necessary to explain its rulings.
4

References to rules are to the Federal Rules of Civil Procedure
unless otherwise noted.
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state law claims should be dismissed because he did not have a
recognized property interest in the easement at issue when he was
charged with criminal trespass and that the charge was supported by
probable cause, id. at 39-40; and (4) claims against the County should
be dismissed, id. at 42-49.
On September 16, 2016, Nixon and Rieger appealed denial of their
motion to dismiss. Notice of Appeal (ECF No. 24). They maintain that
they “appeal the determination that they are not entitled to immunity
as a matter of law.” Joint Answer Br. Opposing Mtn. to Certify the
Appeal as Frivolous (ECF No. 43) at 2. The County did not appeal.
On September 23, 2016, Nixon and Rieger filed their motion to
stay proceedings pending appeal. Mtn. for a Stay (ECF No. 29). Also
on September 23, 2016, Carbon County filed its motion to stay
proceedings pending appeal. County’s Mtn. to Stay (ECF No. 31).
On October 7, 2016, the Burgans filed their consolidated response
in opposition to the motions to stay. Pltfs’ Consolidated Resp. Br. (ECF
No. 37). They also filed a motion to certify the appeal filed by Nixon
and Rieger as frivolous. Pltfs’ Mtn. to Certify Appeal as Frivolous (ECF

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No. 35).
II.

Summary of Parties’ Arguments
Nixon and Rieger argue that: (1) an order denying qualified

immunity is immediately appealable, Nixon & Rieger’s Supporting Br.
(ECF No. 30) at 2; (2) a pending appeal from such an order generally
deprives the district court of jurisdiction, id.; and (3) the Court should
stay proceedings against them because the immunity sought is
immunity from suit, so if they are found during the appeal to have
immunity, allowing the case to progress now could deprive them of such
immunity, id. at 3.
The County argues whether Nixon and Rieger are immune is
“inextricably intertwined” with the County’s liability for the Burgans’
claims. County’s Supporting Br. (ECF No. 32) at 2. It also argues that
all four factors the Court is to consider when deciding whether to stay
proceedings pending an interlocutory appeal weigh in favor of a stay.
Specifically, the County argues that: (1) the Ninth Circuit likely will
conclude that Nixon and Rieger have immunity because the right that
they are accused of violating was not clearly established at the time of

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their actions and the issue of whether it was poses a serious and
substantial question, id. at 2-3; (2) the County likely will suffer
irreparable harm without a stay because County liability derives from
the liability of Nixon and Rieger and it is likely that the Ninth Circuit
will conclude that they did not violate Plaintiffs’ rights, thus relieving
the County of liability, id. at 3-4; (3) without a stay, other parties could
be injured because: (a) it is possible that two trials – one involving
Plaintiffs’ claims against the County and the other, if the Ninth Circuit
affirms the Court’s August 23, 2016 order, involving Plaintiffs’s claims
against Nixon and Rieger – could occur causing duplicative discovery,
witnesses, and juries; or (b) it is possible that there could be conflicting
legal determinations if the Ninth Circuit reverses the Court’s order by
determining that no violation of Plaintiffs’ rights occurred while the
trier of fact could reach the opposite conclusion in the action against
the County, id. at 4; and (4) the public has an interest in judicial
economy and “an interest in the circumstances under which its local
governments can be successfully sued due to routine actions of its law
enforcement personnel enforcing the laws of the State of Montana[,]”

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id. at 4-5.
In response to the motions to stay, the Burgans, as noted, have
moved the Court to certify that the appeal is frivolous. ECF No. 35.
They argue that: (1) Nixon’s claimed entitlement to absolute immunity
as a prosecutor is frivolous because the Burgans are not suing him for
prosecuting them, but for advising Rieger, during a sheriff’s criminal
investigation, that Bill Burgan and his son committed a trespass, Br. in
Spt. of Mtn. To Certify (ECF No. 36) at 6-7; and (2) Nixon’s and Rieger’s
claimed entitlement to qualified immunity is frivolous because: (a) they
lacked probable cause to charge Bill Burgan and his son with criminal
trespass because civil disputes cannot give rise to probable cause; and
(b) Nixon and Rieger knew of Burgan’s claimed easement to the
headgate and knew that the dispute about it was a civil matter, id. at
7-10.
The Burgans also oppose the motions to stay arguing that: (1)
Nixon’s and Rieger’s appeal is frivolous, as argued in their motion to
certify the appeal as frivolous, so that this Court is not divested of its
jurisdiction over this matter as it concerns them, Pltfs’ Consolidated Br.

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in Resp. to Mtns. to Stay (ECF No. 37) at 2-4; (2) the County did not
appeal the Court’s August 23, 2016 Order, so the Court continues to
have jurisdiction over the County despite the other defendants’ appeal,
id. at 2-3; (3) the factors the Court is to consider in deciding whether to
stay proceedings involving the County weigh against staying the
matter because: (a) to the extent the County’s liability is tied to the
other defendants, the likelihood of success for Nixon and Rieger on
appeal is poor since their appeal is frivolous, id. at 3-5; (b) the County
will not suffer irreparable harm if the case is not stayed because
monetary injury is not normally considered irreparable, expenditure of
resources preparing for trial would not be wasted, and the risk of two
trials is not irreparable as the Burgans consent to a schedule that does
not include a trial setting at this time, id. at 6-7; (c) a stay would result
in years of delay and potential loss of evidence for the Burgans, id. at 78; and (d) the public’s interest is best served by allowing the Burgans to
preserve evidence and have their day in court, id. at 9.
III. Discussion
The motions to stay proceedings pending appeal necessarily will

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be affected by the Court’s decision on the Burgans’ motion to certify the
appeal as frivolous. Thus, the Court first addresses the Burgans’
motion to certify as frivolous the appeal filed by Nixon and Rieger.
A.

Motion to Certify the Appeal as Frivolous

Like this Court’s August 23, 2016 Order, “pretrial orders denying
qualified immunity generally fall within the collateral order doctrine.”
Plumhoff v. Rickard, 134 S.Ct. 2012, 2019 (2014). Provided such an
order “turns on an issue of law,” it is immediately appealable. Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985); A.K.H. by and through Landeros v.
City of Tustin, ___ F.3d ___, 2016 WL 4932330, *3 (9th Cir., Sept. 16,
2016) (Ninth Circuit has jurisdiction over “legal” but not “factual”
interlocutory appeals) (citations omitted).
Filing this type of interlocutory appeal “divests the district court
of jurisdiction to proceed with trial.” Chuman v. Wright, 960 F.2d 104,
105 (9th Cir. 1992) (citation omitted). But there is an exception.
“Should the district court find that the defendants’ claim of qualified
immunity is frivolous ..., the district court may certify, in writing, that
defendants have forfeited their right to pretrial appeal, and may

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proceed to trial.” Id. A district court may deem an appeal frivolous
“when the result is obvious or the appellant’s arguments are wholly
without merit.” Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d
1004, 1007 (9th Cir. 2015) (citation omitted). As some courts have
observed, for an appeal to be frivolous, it must be “so baseless that it
does not invoke appellate jurisdiction such as when the disposition is so
plainly correct that nothing can be said on the other side.” Isayeva v.
County of Sacramento, 2015 WL 6744529, *2 (E.D. Cal., Nov. 4, 2015)
(citing Schering Corp. v. First DataBank, Inc., 2007 WL 1747115, *3
(N.D. Cal., June 18, 2007) (quoting Apostol v. Gallion, 870 F.2d 1335,
1339 (7th Cir. 1989) (internal quotation marks omitted))).
Under the foregoing authority, the Court cannot conclude that the
appeal filed by Nixon and Rieger is “wholly without merit.” Id. In its
August 23, 2016 Order, the Court determined both that: (1) Bill Burgan
sufficiently alleged facts supporting his claims of alleged violations of
his constitutional rights under the Fourth, Fifth, and Fourteenth
Amendments, ECF No. 19 at 30-33; and (2) such constitutional rights
were clearly established at the time and under the case’s specific

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context, id. at 33-38. But it is not beyond peradventure that reasonable
jurists could differ respecting the sufficiency of Bill Burgan’s factual
allegations supporting his claims, or even that the constitutional rights
alleged to have been violated were clearly established under the specific
context of this case. Although this Court believes that it correctly made
those determinations in reviewing those issues, others reasonably may
view the issues differently. Thus, the Court cannot say that the appeal
filed by Nixon and Rieger is frivolous. The Burgans’ motion to certify it
as frivolous, therefore, is appropriately denied.
B.

Motions to Stay Proceedings Pending Appeal
1.

Motion Filed by Nixon and Rieger

Respecting the motion to stay filed by Nixon and Rieger, the
Court is compelled to grant the motion. As noted, the Ninth Circuit has
concluded that, absent the district court’s certification that an appeal is
frivolous, “the district court is automatically divested of jurisdiction to
proceed with trial pending appeal.” Chuman, 960 F.2d at 105.
As noted above, the Court is denying the Burgan’s motion to
certify as frivolous the appeal filed by Nixon and Rieger. Under

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Chuman, this automatically divests the Court of jurisdiction to proceed
with trial pending appeal. But the deprivation of jurisdiction is
applicable only “over the particular issues involved in that appeal.”
City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th
Cir. 2001). Thus, the Court will grant the motion to stay pending
appeal to the extent it relates to the appeal filed by Nixon and Rieger.
2.

The County’s Motion to Stay Proceedings

The County’s motion to stay presents a closer question. As noted,
the County did not appeal the Court’s August 23, 2016 Order denying
the County’s motion to dismiss the Burgans’ action against it. Thus,
despite the appeal filed by Nixon and Rieger, the Court “still has
jurisdiction over aspects of the case that are not the subject of the
appeal.” Castro v. Melchor, 760 F.Supp.2d 970, 1003 (D. Hawaii 2010)
(citations omitted).
The Supreme Court has determined this Court must examine four
factors to evaluate the merits of the County’s motion to stay
proceedings: “(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the

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applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.”
Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omitted). The
Supreme Court also noted:
A stay is not a matter of right, even if irreparable injury
might otherwise result. It is instead an exercise of judicial
discretion, and the propriety of its issue is dependent upon
the circumstances of the particular case. The party
requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion. The fact
that the issuance of a stay is left to the court’s discretion
does not mean that no legal standard governs that discretion
.... A motion to a court’s discretion is a motion, not to its
inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.
Id. at 433-34 (internal citations and quotations omitted).
In elaborating upon the four factors comprising the “traditional
standard” for a stay listed above, the Supreme Court added:
The first two factors of the traditional standard are the most
critical. It is not enough that the chance of success on the
merits be “better than negligible.” More than a mere
“possibility” of relief is required. By the same token, simply
showing some “possibility of irreparable injury” fails to
satisfy the second factor. As the Court pointed out earlier
this Term, the “possibility” standard is too lenient.

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Id. at 434-35 (citations and some quotations omitted).
In the case at hand, after considering the four factors and
exercising its discretion within their framework, the Court concludes
that a stay is appropriate, as discussed below.
a.

Likelihood of Success

The Court concludes that the first factor – that is, whether the
appeal filed by Nixon and Rieger is likely to be successful – is neutral.
In this Court’s opinion, the County has not made a “strong showing” of
likelihood of success on the merits. Rather, it has merely argued that
the Ninth Circuit will determine that, under Montana law, a secondary
easement must be determined by a Montana district court and that
“the entirety of the right to the secondary easement [cannot be] ‘clearly
established’ until such a court determination is made.” ECF No. 32 at
3. As noted above, this Court has concluded that Nixon and Rieger are
not entitled to immunity under this argument. But the Court also has
concluded that their appeal is not frivolous. Thus, this factor weighs
neither in favor of nor against a stay of proceedings in this Court
respecting the action against the County.

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b.

Harm to the County if Stay Denied

The Court concludes that this factor supports a stay pending
resolution of the appeal. Because the Court already has determined
that a stay is appropriate as to Nixon and Rieger, it necessarily follows
that a stay is appropriate respecting the Burgans’ claims against the
County.
The Burgans alleged in their original Complaint that the County’s
municipal liability arose when Nixon acted as “Carbon County’s
policymaker in rendering opinions to County officers on matters
relating to their duties” and when Rieger acted as “Carbon County’s
policymaker concerning the issuance of misdemeanor complaints by the
sheriff’s department[.]” ECF No. 1 at ¶¶ 16, 18. Thus, at least at this
stage of the proceedings, the County’s liability is tied to the liability of
Nixon and Rieger. To require the County to proceed with discovery in
the absence of Nixon and Rieger, and to otherwise defend the claims
against it, would put the County in an untenable position and cause it
irreparable harm as the case proceeds.

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c.

Substantial Injury to Other Parties

This factor is neutral. Nixon and Rieger may suffer some injury
should the Court decline to stay proceedings against the County while
the proceedings against them are stayed.
But there exists a possibility of some injury to the Burgans if a
complete stay is imposed. The events giving rise to this action occurred
about three years ago. The Burgans filed this action nearly six months
ago. Because motions to dismiss were filed, briefed, and recently
resolved, no discovery and trial schedule is in place. And, because
Nixon and Rieger have now filed an interlocutory appeal, further – and
perhaps lengthy – delay may follow.
The Court concludes that any injury to the Burgans would be
outweighed by harm to the County if it is required to proceed in Nixon
and Rieger’s absence, for reasons already stated. It also would be
highly inefficient and a waste of scarce judicial resources if this matter
were bifurcated for discovery, particularly in light of the close
connection between the claims against the County and claims against
Nixon and Rieger.

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d.

Public Interest

The public interest factor weighs in favor of a stay. Although the
public always has an interest in the timely resolution of litigation, it
also has an interest in efficient and economical litigation. This is
particularly apparent when a governmental entity is involved because
public resources are often at stake. On the current record, and
especially in light of the fact that the Court will stay the matter as it
relates to Nixon and Rieger pending their appeal, at this stage of the
proceedings the Court concludes that this factor weighs more heavily in
favor of granting a stay.
e.

Summary

After consideration of the Nken factors, and for the reasons
discussed above, the Court concludes that the County has met its
burden of establishing that a stay is appropriate. Thus, the County’s
motion for a stay is appropriately granted.
IV.

Conclusion
For the foregoing reasons, IT IS ORDERED that:
1. the Burgans’ motion to certify as frivolous the appeal filed by

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Nixon and Rieger (ECF No. 35) is DENIED;
2. the motion to stay proceedings pending appeal filed by Nixon
and Rieger (ECF No. 29) is GRANTED; and
3. the motion to stay proceedings pending appeal filed by the
County (ECF No. 31) is GRANTED.
DATED this 7th day of November, 2016.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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