Wheatt et al v. City of East Cleveland et al

Filing 229

Opinion & Order signed by Judge James S. Gwin on 9/20/18. The Court, for the reasons set forth in this order, grants plaintiffs' motion to set a trial date. Trial is set for 11/13/18 at 8:00 a.m., Courtroom 18A. (Related Doc. 219 ) (D,MA)

Case: 1:17-cv-00377-JG Doc #: 229 Filed: 09/20/18 1 of 4. PageID #: 6098

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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DERRICK WHEATT, et al.,
:
:
Plaintiffs,
:
:
v.
:
:
CITY OF EAST CLEVELAND, et al., :
:
Defendants.
:
:
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CASE NO. 1:17-CV-377
consolidated with
CASE NO. 1:17-CV-611
OPINION & ORDER
[Resolving Doc. 219]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this § 1983 action, Plaintiffs allege that Defendants City of East Cleveland and its
officers (collectively, the “City Defendants”) violated their constitutional rights, leading to
their wrongful murder conviction and prison sentence. Plaintiffs moved to set a trial date,
and the Court granted this motion.1 This opinion explains why the Court has jurisdiction to
proceed to trial.
I. Procedural History
On November 9, 2017, the Court held that the City Defendants had waived their
right to assert a qualified immunity defense.2 Defendants appealed,3 and successfully
moved to stay trial proceedings during the pendency of the Sixth Circuit appeal.4

1
2

See Doc. 219 and August 8, 2018 non-document docket entry.

Doc. 124.
Doc. 130. As the Sixth Circuit later noted, Defendants directed their notice of appeal at two orders
unrelated to the Court’s denial of qualified immunity. However, Defendants described the substance of their
appeal as “Qualified Immnity Waiver” (sic), apparently a reference to the decision denying qualified
immunity.
4
Doc. 201.
3

Case: 1:17-cv-00377-JG Doc #: 229 Filed: 09/20/18 2 of 4. PageID #: 6099
Case No. 1:17-cv-377
Gwin, J.
On July 12, 2018, the Sixth Circuit affirmed the Court’s holding that the City
Defendants had forfeited their claim to qualified immunity.5 The Sixth Circuit issued its
mandate on August 6, 2018.6 On the same day, Plaintiffs moved the Court to set a trial
date.7
On July 20, 2018, the City Defendants filed a petition for a writ of certiorari with the
Supreme Court of the United States.8 This petition was docketed on August 30, 2018.9
Defendants did not move to stay the Sixth Circuit’s mandate under Federal Rule of
Appellate Procedure 41(d)(2), nor have they moved the Supreme Court to stay proceedings
under 28 U.S.C. § 2101(f)10 and Supreme Court Rule 23.11
II. Discussion
Defendants now argue that the filing and docketing of the cert petition deprives the
Court of jurisdiction to conduct a trial.12
Defendants are incorrect. The issuance of a mandate “transfer[s] jurisdiction of the
case back to the District Court,”13 and the filing of a cert petition does not automatically
stay district court proceedings.14 Unless the Sixth Circuit recalls its mandate, or the City

5

Doc. 213.
Doc. 218.
7
Doc. 219.
8
Doc. 220.
9
Doc. 224-1.
10
28 U.S.C. § 2101(f) (“In any case in which the final judgment or decree of any court is subject to review by
the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be
stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme
Court.”).
11
Sup. Ct. R. 23 (“A party to a judgment sought to be reviewed may present to a Justice an application to stay
the enforcement of that judgment.).
12
Doc. 224. Plaintiffs oppose. Doc. 227. Defendants reply. Doc. 228.
13
United States v. Eisner, 323 F.2d 38, 42 (6th Cir. 1963). See also Wilson v. McKenna, 815 F.2d 707, 707
(6th Cir. 1987) (table) (“The district court acquires jurisdiction after the mandate of this Court issues.”).
14
Eisner, 323 F.2d at 41 (rejecting the argument “that the filing of a petition for certiorari operates as a stay of
proceedings in the Court of Appeals and the District Court”).
6

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Case: 1:17-cv-00377-JG Doc #: 229 Filed: 09/20/18 3 of 4. PageID #: 6100
Case No. 1:17-cv-377
Gwin, J.
Defendants obtain a stay, the Court enjoys the jurisdiction it reacquired upon issuance of
the mandate to proceed to trial.15 If Defendants were correct, then the various provisions
of federal law providing relief from an adverse judgment during the pendency of a
certiorari petition—Federal Rule of Appellate Procedure 41(d)(2), 28 U.S.C. § 2101(f), and
Supreme Court Rule 23—would serve no purpose.
Defendants cite Deering Milliken, Inc. v. F.T.C.16 for the proposition that the filing
of a cert petition automatically stays the issuance of a mandate until the Supreme Court
disposes of the petition. Even if Deering Milliken were binding authority—and it is not—
that decision is not on point. There, the Clerk of the D.C. Circuit had a policy of
withholding the court’s mandate pending disposition of a cert petition.17 Faced with a
motion for issuance of the mandate, the court granted a stay sua sponte because it found
that the requirements for a stay had been met.18 Here, by contrast, the Sixth Circuit has
issued its mandate, and Defendants do not present any arguments that they are entitled to a
stay.
For the forgoing reasons, the Court GRANTS Plaintiffs’ motion to set a trial date.

See United States v. DiLapi, 651 F.2d 140, 144 (2d Cir. 1981) (holding that district court was authorized to
conduct trial after issuance of mandate, even though a petition for rehearing was pending before appeals
court).
16
647 F.2d 1124 (D.C. Cir. 1978).
17
As the court noted, this policy is in conflict with Federal Rule of Appellate Procedure 41(d)(2). Id. at 1123.
Because it granted a stay, the court did not resolve the tension between the Rule and the policy.
18
Id. at 1128 (“[I]t is clear to us that were there a motion for stay of the mandate we would be obliged to
grant it.”).
15

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Case: 1:17-cv-00377-JG Doc #: 229 Filed: 09/20/18 4 of 4. PageID #: 6101
Case No. 1:17-cv-377
Gwin, J.
Trial is set for November 13, 2018 at 8:00 a. m.
IT IS SO ORDERED.

s/
James S. Gwin___________
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: September 20, 2018

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