Opinion
21-1189-DDC-KGG
12-16-2022
CHRISTIAN J. WASHINGTON, Plaintiff, v. CITY OF WICHITA, KANSAS and DRAKE KREIFELS, Defendants.
MEMORANDUM AND ORDER VACATING TRIAL SETTING
Daniel D. Crabtree United States District Judge.
This action is set for a jury trial beginning on January 3, 2023. While neither party has asked the court to vacate that setting-possibly because the case is stayed, Doc. 34-the court, on its own motion, now vacates the trial setting. The rest of this Order explains why.
In large measure, the court denied defendants' Motion for Summary Judgment (Doc. 19) in an Memorandum and Order issued earlier this year. See Doc. 37 (entered August 23, 2022). Both defendants then filed a Notice of Appeal (Doc. 39). Their Notice characterizes their appeal as one involving “pure questions of law.” Id. Plaintiff hasn't asked this court to find that defendants' appeal is frivolous, and the court concludes that governing authority divests this court of jurisdiction while defendants' appeal is pending. See Stewart v. Donges, 915 F.2d 572, 583 (10th Cir. 1990) (“Defendant's timely notice of interlocutory appeal divested the district court of jurisdiction because the district court did not declare his appeal frivolous.”). But see Est. of Booker v. Gomez, 745 F.3d 405, 409 (10th Cir. 2014) (“Under the Supreme Court's direction in Johnson v. Jones, 515 U.S. 304 (1995), however [a Circuit Court] has no interlocutory jurisdiction to review ‘whether or not the pretrial record sets forth a “genuine” issue of fact for trial.'” (quoting Johnson, 515 U.S. at 320)).
Because plaintiff has not sought and this court thus has not found defendants' interlocutory appeal a frivolous one, the court concludes that it currently lacks jurisdiction to proceed with the trial.
THEREFORE, the court vacates the case's trial setting on January 3, 2023. If appropriate, the court will reset the trial date in a future Order.
IT IS SO ORDERED.