Cardenas-Ornelas v. Wickham et al

Filing 107

ORDER granting 104 Motion to Vacate. The January 7, 2025 Settlement Conference ECF No. 99 is VACATED. The parties are directed to file a Motion or Stipulation regarding the Settlement Conference within 21 days after determination of their appeal. Signed by Magistrate Judge Maximiliano D. Couvillier, III on 1/3/2025. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - CAH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Luis Cardenas-Ornelas,
Plaintiff(s),

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vs.

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Calvin Johnson, et al.,

Pending before the Court is defendants’ Motion to Vacate Settlement Conference (“Motion”)

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(ECF No. 104). For the reasons stated below, the Court GRANTS the Motion.
DISCUSSION

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ORDER VACATING SETTLEMENT
CONFERENCE

Defendant(s).

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2:21-cv-00030-ART-MDC

I. BACKGROUND

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On October 16, 2023, defendants filed a Motion for Summary Judgment. ECF No. 84.

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Defendants asserted, among other things, that plaintiff’s claims failed due to sovereign and qualified

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immunity. Id. On September 30, 2024, the district judge denied defendant’s assertion of sovereign and

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qualified immunity. ECF No. 97. On October 22, 2024, the district judge referred this matter to the

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undersigned magistrate for a settlement conference. ECF No. 98. The undersigned set a virtual

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settlement conference for January 7, 2025. ECF No. 99. On October 30, 2024, the defendants filed a

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Notice of Appeal (ECF No. 100), appealing the district judge’s denial of their immunity defenses. On

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December 23, 2024, the defendants filed the Motion to Vacate Settlement Conference. ECF No. 104.

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The undersigned ordered expedited briefing on this matter and ordered plaintiff to submit his response

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by no later than January 3, 2025. Plaintiff submitted his response, opposing the Motion, on December

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31, 2024.

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II. MOTION TO VACATE SETTLEMENT CONFERENCE
The Court finds that there are sufficient grounds to grant defendants’ Motion. Defendants are

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correct that, upon filing their notice of appeal, this Court was divested of jurisdiction to proceed with the

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settlement conference. See Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992). Plaintiff is also correct

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that courts are not divested of jurisdiction if the appeal is frivolous or forfeited such determination.

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However, the district court did not certify that defendants’ appeal was frivolous or forfeited. “In the

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absence of such certification, the district court is automatically divested of jurisdiction to proceed with

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trial pending appeal.” Chuman, 960 F.2d at 105. Plaintiff did not provide any authorities to the

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contrary, or that would otherwise allow for the settlement conference to proceed. Upon defendants’

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Notice of Appeal (ECF No. 100), the Court is divested of jurisdiction to proceed with the January 7,

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2025, settlement conference.

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ACCORDINGLY,

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IT IS ORDERED that:

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1. The Motion to Vacate Settlement Conference (ECF No. 104) is GRANTED.

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2. The January 7, 2025 Settlement Conference (ECF No. 99) is VACATED.

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3. The parties are directed to file a Motion or Stipulation regarding the Settlement Conference

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within 21 days after determination of their appeal.

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DATED this 3rd day of January 2025.
IT IS SO ORDERED.
_________________________
Hon. Maximiliano D. Couvillier III
United States Magistrate Judge

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NOTICE

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Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and

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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk

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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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may determine that an appeal has been waived due to the failure to file objections within the specified

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time. Thomas v. Arn, 474 U.S. 140, 142 (1985).

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This circuit has also held that (1) failure to file objections within the specified time and (2)

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failure to properly address and brief the objectionable issues waives the right to appeal the District

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Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any

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change of address. The notification must include proof of service upon each opposing party’s attorney,

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or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may

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result in dismissal of the action.

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