The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION DENYING AS MOOT REQUEST TO LIFT STAY AND GRANTING LEAVE TO AMEND (DOC. 100)
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.
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 proceedings ...." 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....
Lakeland 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.
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 ---, ...