Opinion
1:06-cv-00736 OWW GSA
09-19-2011
PAIUTE-SHOSHONE INDIANS OF THE BISHOP COMMUNITY OF THE BISHOP COLONY, CALIFORNIA, a federally recognized Indian tribe, Plaintiff, v. CITY OF LOS ANGELES, a California municipal corporation, Defendant.
MEMORANDUM DECISION DENYING AS MOOT REQUEST TO LIFT STAY AND
GRANTING LEAVE TO AMEND (DOC. 100)
I. INTRODUCTION
Plaintiff, the Paiute-Shoshone Indians of the Bishop Community of The Bishop Colony, California (the "Tribe"), moves to "lift [the] administrative stay" and for an order setting a deadline for filing an amended complaint. Doc. 100. Defendant, the City of Los Angeles ("the City") opposes. Doc. 101. Plaintiff replied. Doc. 102. The motion was originally calendared for July 25, 2011, but the hearing was vacated after the parties stipulated to have the matter decided on the papers. Doc. 103.
II. ANALYSIS
On June 12, 2006, the Tribe brought a suit in ejectment to reclaim land in the Owens Valley that was transferred in 1941 by agents of the United States (purportedly acting in the name of the Tribe) to the City. The Tribe alleged, generally, that the conditions imposed by Congress on this transfer had not been not satisfied, rendering the purported transfer null and void. The City's motion to dismiss was granted on the ground that the United States is an indispensable party that cannot be joined under Federal Rule of Civil Procedure 19. Doc. 73 ("Rule 19 Dismissal") . Plaintiff was granted 30 days from February 15, 2007 within which to file an amended complaint. Id. at 48.
On March 20, 2007, Plaintiff filed a "stipulated motion" for extension of time in which to file an amended complaint. Plaintiff specifically requested an extension until 30 days after the Court ruled on "plaintiff's pending motion to amend [to allow an interlocutory appeal] and for a stay of proceedings." Doc. 76. That request was granted. Doc. 77.
On July 30, 2007, the district court granted Plaintiff's request for certification of an interlocutory appeal. Doc. 83, dated July 30, 2007. Because that decision did not specifically mention the imposition of a stay pending the appeal, the City asserts that the time for filing of an appeal lapsed 30 days later, on August 30, 2007.
Under the governing statute, 28 U.S.C. § 1292, once the district court issues a written order determining that an interlocutory appeal is appropriate, a plaintiff has ten days to apply to the Court of Appeals for permission to take the appeal. § 1292(b). The statute specifically provides that application to the Court of Appeals for permission to take an interlocutory appeal "shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order." Id.
The City asserts that a stay while an interlocutory appeal is pending is "rarely, if ever, appropriate under any circumstances," citing Fisons Limited v. United States, 458 F.2d 1241, 1248 n.16 (7th Cir. 1972). This forty-year-old case from another Circuit is not persuasive. There is more recent authority to the contrary:
[A district] court has authority to stay this case pending an interlocutory appeal since section 1292(b) states: "[A]pplication for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order." Here, resolution of the issue [on which the interlocutory appeal has been taken] "would alter the direction of the current proceedingsLakeland Village Homeowners Ass'n v. Great Am. Ins. Group., 727 F. Supp. 2d 887, 897 (E.D. Cal. 2010). Here, like in Lakeland, the thrust of Plaintiff's complaint involved claims tied up in the interlocutory appeal. It would have been appropriate at the time the interlocutory appeal was certified to stay the case pending resolution of the appeal.
Assoc. of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d at 1092-93 (staying proceedings pending interlocutory appeal of order denying motion to dismiss Clean Air Act claim). Since three of Plaintiff's four claims against [defendant] are based upon [appealed issue], "[i]t would be a waste of judicial and party resources to proceed with [these] claims while the appeal is pending." Id....
The problem is that no such stay was ever entered. Plaintiff did request, if the interlocutory appeal was certified, that the deadline for filing an amended complaint be stayed until thirty days following resolution of the interlocutory appeal. Doc. 75-1 at 12. However, the order granting certification did not impose a stay, and Plaintiff did not move to correct this inadvertent omission. The deadline for the filing of an amended complaint passed while the appeal was pending.
Nevertheless, even though Plaintiff missed the deadline for filing an amended complaint, a court should "freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Where, as here, a party has not had an opportunity to amend its original complaint, leave "generally shall be denied only upon a showing of bad faith, undue delay, futility, or undue prejudice to the opposing party." Chudacoff v. Univ. Med. Ctr. of S. Nev. , --- F.3d --- , 2011 WL 2276774, *6 (9th Cir. Jun. 9, 2011). The City does not assert bad faith, undue delay, or undue prejudice.
The City does argue that amendment of the complaint would be futile. Doc. 101 at 4-6. The City maintains that because the Rule 19 Dismissal found that the claims in the original complaint could not proceed without the United States, which could not be joined, "any amendment to the complaint which omits the federal government's involvement and seeks to proceed solely against the City in connection with the 1937 land transfer would be insufficient and futile." Id. at 5. This might be a valid basis for a finding of futility if Plaintiff had indicated its intent to re-file a claim based on ejectment or a related cause of action. To the contrary, Plaintiff asserts in its reply that it has other claims against the United States, including allegations that the federal government failed to manage trust assets for the benefit of the Tribe. Such claims are not obviously futile.
III. CONCLUSION
For the reasons set forth above, Plaintiff's motion to lift the administrative stay is DENIED AS MOOT, as no such stay was ever entered. Nevertheless, Plaintiff is granted leave to amend the complaint within thirty (30) days of electronic service of this memorandum decision.
Due to the pending retirement of the assigned district judge, the parties will shortly receive notice of reassignment of this case. That notice shall not alter the deadline for the filing of the amended complaint.
SO ORDERED
Oliver W. Wanger
United States District Judge