Opinion
Anne L. Keck, KECK LAW OFFICES, Santa Rosa, California, Attorneys for Defendant Former Tehama County Sheriff's Deputy ED McCULLOUGH.
STIPULATION REQUESTING ENTRY OF ORDER (1) EXTENDING TIME FOR DEFENDANT McCULLOUGH TO ANSWER THIRD AMENDED COMPLAINT, AND (2) EXTENDING TIME TO FILE NOTICE OF APPEAL; ORDER
JOHN A. MENDEZ, District Judge.
This stipulation and request for entry of order is entered into by and between Plaintiff Drew Gardner ("Plaintiff") and Defendant Ed McCullough, formerly a Tehama County Sheriff's Deputy ("Deputy McCullough"), for two purposes. First, the parties request the Court to extend the time in which Deputy McCullough must file an Answer to the Third Amended Complaint herein, through and including December 14, 2015. Second, the parties request the Court to extend the time in which Deputy McCullough may file a notice of appeal regarding the Court's denial of his qualified immunity defense in connection with his motion to dismiss the complaint (Dkt. No. 45), and the Court's denial of his motion for reconsideration on that issue (Dkt. No. 70), through and including December 14, 2015. The parties submit that good cause supports this stipulation and request for entry of an order, as set forth below.
RECITALS
A. Plaintiff initially filed his complaint in this action in the Tehama County Superior Court on October 17, 2014. It was removed to this Court through a Notice of Removal filed by Stipulation Requesting Entry of Order (1) Extending U.S.D.C. No. 2:14-CV-02730-JAM-CMK Time for Defendant McCullough to Answer, et al. 1 Defendants the California Highway Patrol and CHP Officer Newman on November 19, 2014.
B. On April 30, 2015, Deputy McCullough and the County of Tehama filed a motion to dismiss Plaintiff's First Amended Complaint on various grounds. On July 20, 2015, the Court resolved that motion in its "Order Granting in Part and Denying in Part State Defendants' Motion to Dismiss and Granting in Part and Denying in Part County Defendants' Motion to Dismiss, " Docket No. 45 (the "Dismissal Order"). In the Dismissal Order, the Court dismissed all claims against Deputy McCullough save one: the Court determined that the allegations in the complaint did not warrant granting Deputy McCullough qualified immunity on Plaintiff's Fourteenth Amendment substantive due process claim brought pursuant to 42 U.S.C. § 1983 ("§ 1983").
C. On August 17, 2015, Deputy McCullough filed a motion to reconsider the Court's denial of his qualified immunity defense on Plaintiff's remaining §1983 claim against him, and concurrently filed an alternative motion for summary judgment based on the qualified immunity defense. (Dkt. Nos. 47, 58.) In its minute order entered on October 14, 2015, the Court denied the motion to reconsider. (Dkt. No. 70, the "Reconsideration Order.") In two separate minute orders, the Court took Deputy McCullough's alternative motion for summary judgment under submission (Dkt. Nos. 66, 70), and it remains under submission at the time of this stipulation.
D. In light of the Court's Reconsideration Order, and pursuant to Federal Rules of Civil Procedure ("FRCP") Rule 12(a)(4)(A), Deputy McCullough's answer to the Third Amended Complaint is due to be filed on or before October 28, 2015 (i.e., 14 days after notice of Court action denying a motion to dismiss).
E. In addition, federal law provides Deputy McCullough with a right to immediately file an interlocutory appeal regarding the Court's denial of his qualified immunity defense in its Dismissal Order and Reconsideration Order. See Will v. Hallock, 546 U.S. 345, 350 (2006). Federal Rules of Appellate Procedure ("FRAP") Rules 4(a)(1)(A) and 4(a)(4)(A) provide that any such appeal must be filed no later than 30 days after entry of the order disposing of the last remaining motion on the issue. In this case, because the Reconsideration Order was entered on October 14, 2015, the time to file a notice of appeal on that order and the Dismissal Order expires on November 13, 2015.
F. District Courts are authorized to extend the 30-day time period for filing a notice of appeal for "good cause" under FRAP 4(a)(5). Pursuant to such rule, District Courts cannot extend that time period for longer than 30 days or 14 days after entry of the extension order, whichever is longer. FRAP 4(a)(5)(C).
G. The parties have agreed that there is good cause to extend the time period in which Deputy McCullough must file an answer to the Third Amended Complaint as well as the time period in which he may file a notice of appeal regarding the Dismissal Order and Reconsideration Order, based on the following reasons presented by Deputy McCullough:
1. Deputy McCullough would like to preserve his right to file an interlocutory appeal on the denial of qualified immunity in the Dismissal Order/Reconsideration Order pending the Court's decision on his summary judgment motion, which right would be waived if he were to file an answer;
2. If the Court grants Deputy McCullough's motion for summary judgment based on qualified immunity, any appeal of the Dismissal Order/Reconsideration Order becomes moot;
3. If the Court denies Deputy McCullough's motion for summary judgment based on his qualified immunity defense, it would be most expeditious to combine any appeal on that issue with the same issue addressed in the Dismissal Order/Reconsideration Order; and
4. Any appeal of the Dismissal Order/Reconsideration Order would result in an automatic stay of all trial court proceedings against him, which would prevent this Court from resolving Deputy McCullough's pending motion for summary judgment. See e.g., City of Los Angeles v. Santa Monica BayKeeper, 254 F.3d 882, 886 (9th Cir. Cal. 2001) (The filing of an interlocutory appeal "divests the district court of jurisdiction over the particular issues involved in that appeal.").
H. Accordingly, to preserve Deputy McCullough's right to appeal the Dismissal Order/Reconsideration Order pending this Court's decision on his motion for summary judgment, the parties believe that extending the time for the Deputy to file his answer and to appeal those orders is warranted.
WHEREFORE, the parties to this stipulation hereby agree and request entry of an order as follows:
STIPULATION
1. The parties to this stipulation request entry of an order extending the time period in which Deputy McCullough must file an answer to the Third Amended Complaint through and including December 14, 2015, pursuant to FRCP Rules 12(a)(4) and 15(a)(3);
2. The parties to this stipulation request entry of an order extending the time period in which Deputy McCullough may file a notice of appeal of the denial of his qualified immunity defense in the Dismissal Order and Reconsideration Order through and including December 14, 2015, pursuant to FRAP Rule 4(a)(5).
3. Nothing in this Stipulation and request for order is intended to modify the other matters addressed in any Court order unless expressly identified herein, nor does it preclude the parties from seeking additional relief from this Court, to amend this stipulation and order or otherwise.
WHEREFORE, the parties to this stipulation, through their respective counsel of record, hereby agree and request entry of an order as set out above.
ORDER
Pursuant to and in accordance with the foregoing Stipulation, and with good cause appearing,
IT IS HEREBY ORDERED as follows:
1. The time period in which Deputy McCullough must file an answer to the Third Amended Complaint is extended through and including December 14, 2015, pursuant to FRCP Rules 12(a)(4) and 15(a)(3);
2. The time period in which Deputy McCullough may file a notice of appeal of the denial of his qualified immunity defense in the Dismissal Order (Dkt. No. 45) and Reconsideration Order (Dkt. No. 70) is extended through and including December 14, 2015, pursuant to FRAP Rule 4(a)(5).
IT IS SO ORDERED.