Opinion
21-4147
01-24-2022
EDSON G. GARDNER, Plaintiff Counter Defendant-Appellant, v. WENDI LONG, in her official capacity as Treasurer for Uintah County, Utah, Defendant Counterclaimant-Appellee.
D.C. No. 2:18-CV-00509-RJS, D. Utah
Before PHILLIPS, BRISCOE, and McHUGH, Circuit Judges.
ORDER
On September 16, 2021, the district court entered final judgment dismissing pro se Plaintiff Edson Gardner's amended complaint against Defendant Wendi Long, the Uintah County Treasurer. The final judgment is the subject of appeal no. 21-4101, which is pending in this court. On October 21, 2021, Treasurer Long filed a motion for attorneys' fees in the district court. Mr. Gardner filed a motion to stay consideration of the motion for attorneys' fees pending his appeal from the final judgment. On December 2, 2021, the district court denied Mr. Gardner's motion to stay pending appeal. Mr. Gardner filed this appeal, no. 21-4147, seeking review of the district court's denial of his stay motion. Upon the opening of this appeal, we entered an order to show cause why the appeal should not be dismissed for lack of appellate jurisdiction. Mr. Gardner has filed a response asserting appellate jurisdiction under 28 U.S.C. § 1292(a)(1), or alternatively, under 28 U.S.C. § 1651.
Upon consideration, we dismiss this appeal for lack of appellate jurisdiction. "The denial of a stay pending appeal is not an appealable order." See UFCW Local 880-Retail Food Employers Joint Pension Fund v. Newmont Min. Corp., 276 Fed.Appx. 747, 749 & n.3 (10th Cir. 2008) (stay order is not appealable as a final decision under 28 U.S.C. § 1291, or as an injunction under 28 U.S.C. § 1292(a)(1)). We also note that the district court has not yet ruled on Treasurer Long's motion for attorneys' fees, let alone determined the amount owed, and thus there is no appealable order awarding attorneys' fees. Cf. Am. Soda, LLP v. U.S. Filter Wastewater Group, Inc., 428 F.3d 921, 924 (10th Cir. 2005) ("An award of attorneys' fees is not final and appealable within the meaning of 28 U.S.C. § 1291 until it is reduced to a sum certain."). We further conclude that Mr. Gardner has not shown "exceptional circumstances" to warrant the "extraordinary remedy" of a writ of mandamus under 28 U.S.C. § 1651. See In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186-87 (10th Cir. 2009) (right to writ of mandamus must be "clear and undisputable").
APPEAL DISMISSED