Opinion
No. CIV S-05-2046 RRB GGH.
October 29, 2008
ORDER
Presently pending on this court's law and motion calendar for October 30, 2008, are plaintiffs' motion for sanctions, filed August 20, 2008 and plaintiffs' motion to compel production of documents, filed August 26, 2008. Defendants Couturier, Johanson, and Eddy have filed a motion to continue the hearing date. After receiving plaintiffs' opposition, the court now issues the following order.
Defendants move to continue the October 30, 2008 hearing pending a ruling by the Ninth Circuit Court of Appeals on their motion for a stay of the district court's preliminary injunction orders, or in the alternative, for a stay of the proceedings pending appeal.
The undersigned has no authority to stay this entire case pending appeal. Even if defendants' motion is construed as a request to stay discovery, that request is denied, as is the motion for continuance, for the following reasons. Defendants have not shown good cause to stay these discovery proceedings pending appeal. First, the discovery issues are not the subject of appeal. See Natural Resources Defense Council, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (appeals divest district court of jurisdiction of issues only on appeal). Moreover, defendants have not established that they cannot afford counsel or that legal fees will not be reimbursed to them if they prevail on appeal (The subject of the preliminary injunction orders concerns constructive trust and prohibition on advancement of legal fees to defendants). Furthermore, as pointed out by plaintiffs, these motions have been pending since August, 2008, and have been continued at least two times. This case is over three years old, and is only in the discovery phase. Plaintiffs also point to Couturier's failing health and their desire to depose him before his health deteriorates further. Finally, during the time that these motions would be delayed, defendant Couturier would be able to spend monies from the constructive trust fund on living expenses and attorneys' fees.
Plaintiffs contend that both continuances were pursuant to defendants' requests. The docket reflects joint requests "pursuant to agreement of counsel for plaintiffs and defendant[s]." (Docket #s 335, 357.)
Accordingly, IT IS ORDERED that:
1. Defendants' October 27, 2008 motion to continue the October 30, 2008 hearing date or to stay discovery is denied.
2. The hearing on plaintiffs' motions is vacated from the calendar for October 30, 2008, and the motions (docket #s 326, 337) are taken under submission. If a hearing is later determined to be necessary upon refinement of the issues, one will be scheduled by the court.