STIPULATION AND ORDER TO STAY CASE PENDING APPEAL

[No hearing required]

KIMBERLY J. MUELLER, District Judge.

Plaintiff Nathaniel Smith and all Defendants (City of Stockton police officers Patrick Mayer, Robin Harrison, and Michael Perez, Chief of Police Eric Jones, and the City of Stockton) respectfully submit this stipulation to stay this case pending Defendants' appeal.

RECITALS

A. On February 12, 2015, Plaintiff filed this lawsuit. His operative pleading is his Second Amended Complaint (Doc. No. 38).

B. On July 21, 2017, all Defendants filed a motion for summary judgment or partial summary judgment. (Doc. Nos. 74-80). The motion argued, among other things, the individual defendants are entitled to qualified immunity and the City is entitled to summary judgment on Plaintiff's Monell claim against it.

C. Plaintiff filed an opposition to the motion (Doc. No. 82) and Defendants filed a reply. (Doc. No. 85).

D. On November 17, 2017, the Court held a hearing on the motion. At the conclusion of the hearing, the Court took the motion under submission.

E. On August 13, 2018, the Court issued an order granting the motion in part and denying it in part. As part of its order, the Court expressly denied qualified immunity to the three Officers. (Doc. No. 95).

F. On September 12, 2018, all Defendants timely filed a notice of appeal with the Ninth Circuit (Doc. No. 103). Defendants claim that Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and its progeny hold that a district court's denial of qualified immunity is immediately appealable, and Huskey v. City of San Jose, 204 F.3d 893 (9th Cir. 2000), and its progeny, allow a public entity to join an interlocutory appeal of the denial of qualified immunity where the issues are "inextricably intertwined."

G. Counsel for Defendants contacted counsel for Plaintiff and stated Defendants intended to file a motion to stay this case pending the appeal and asked to meet and confer before filing the motion. Defendants assert the motion to stay would be based on the rule that the filing of a notice of appeal "divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam), quoted in Plata v. Schwarzenegger, 2009 WL 799392, p. 10 (N.D. Ca. 2009); Chuman v. Wright, 960 F.2d 104 (9th Cir. 1992).

H. The parties met and conferred telephonically on September 21, 2018. Plaintiff's counsel stated that Plaintiff does not agree that Defendants have the right to appeal denial of summary judgment on the City's Monell claim as an interlocutory appeal, and that Plaintiff does not agree that this Court is divested of jurisdiction of any issues in this case other than the qualified immunity issues. Nonetheless, Plaintiff agreed to stipulate to stay the entire action pending appeal in order to avoid the costs and inefficiencies of piecemeal litigation.

I. There is no trial date. By stipulated order issued on September 12, 2018, the Court rescheduled the final pretrial conference for December 21, 2018. (Doc. No. 102).

STIPULATION

IT IS STIPULATED AND AGREED by the parties, through their counsel of record, that this Court stay this case pending the Ninth Circuit's ruling disposing of the appeal.

ORDER

Based on the foregoing stipulation, and good cause appearing therefor, IT IS ORDERED. This case is stayed pending a disposition of the appeal by the Ninth Circuit. The final pretrial conference is vacated.