Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. This matter is proceeding before a United States Magistrate Judge with the consent of the parties pursuant to 28 U.S.C. § 636(c). See Consents filed September 28, 2011 (Docket No. 12); November 16, 2011 (Docket No. 18); and December 6, 2011 (Docket No. 20).*fn1 By order filed October 1, 2012, the court denied plaintiff's motion pursuant to Fed. R. Civ. P. 56(d) for additional discovery to oppose defendants' May 8, 2012 and May 17, 2012 motions for summary judgment and granted plaintiff a period of thirty days in which to file and serve oppositions to said motions. On October 29, 2012, plaintiff filed a motion styled as a motion for a ten-day extension of time to file his opposition to defendants' summary judgment motions. By that motion, plaintiff seeks an opportunity to file a motion to stay these proceedings pending appeal from the court's October 1, 2012 order. Defendants oppose the motion for extension of time. On October 30, 2012, plaintiff filed a notice of appeal from the October 1, 2012 order, a motion to stay these proceedings, and a motion to shorten time for hearing on the motion to stay. On October 31, 2012, defendants filed an opposition to the motion for order shortening time and for stay.
Defendants oppose plaintiff's motion for extension of time on the grounds that this court's October 1, 2012 order is not an appealable order and that plaintiff in fact only seeks "more time to avoid opposing the motion." Opposition to Plaintiff's Request for Extension of Time to Oppose Motions for Summary Judgment, filed October 30, 2012, at 2. For the reasons set forth herein, plaintiff's motion for extension of time will be granted.
Defendants oppose plaintiff's motion for stay on the grounds that discovery orders are not immediately appealable . Defendants also contend that plaintiff's motion for stay is "more appropriately treated as a motion for permission to file an interlocutory appeal" and, so treated should be denied because there is no "extraordinary issue of public importance" at stake and plaintiff will not suffer irreparable harm if this case proceeds without an interlocutory appeal of the court's October 1, 2012 order. Defendants' Opposition to Plaintiff's Motion to Stay Proceedings and Order Shortening Time.
After review of the papers filed in support of and opposition to the motions for order shortening time and for stay and good cause appearing, plaintiff's motion for stay will be resolved in this order without oral argument. See L.R. 230(g).
As a general rule, orders concerning discovery "are interlocutory and thus not usually subject to immediate appeal." Nascimento v. Dummer, 508 F.3d 905, 909 (9th Cir. 2007). Cf. Moss v. U.S. Secret Service, 572 F.3d 962, 974 n.11 (in case involving defense of qualified immunity court of appeals held that order at bar granting a Rule 56 request for continuance was "not immediately appealable" but declined to "reach the question whether there are circumstances under which an order granting a [former] Rule 56(f) continuance amounts to an immediately appealable collateral order.") Moreover, "[w]hen a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply." Nascimento, at 908 (citing Ruby v. Secretary of Navy, 365 F.2d 385, 388-89 (9th Cir.1966) (en banc)).
Given the foregoing general rules, it does not appear that the October 1, 2012 order is immediately appealable, or that plaintiff's notice of appeal divested this court of jurisdiction to proceed. However, in the interest of judicial economy this action will be stayed for a period of thirty days. In the absence of a stay by the court of appeals, plaintiff's opposition to defendants' motions for summary judgment will be due sixty days from the date of this order.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's October 29, 2012 motion for extension of time (Docket No. 65) is granted;
2. Plaintiff's October 30, 2012 motion to stay (Docket No. 70) is granted in part;
3. This action is stayed for a period of thirty days;
4. Absent a stay by the United States Court of Appeals for the Ninth Circuit, plaintiff's opposition to defendants' motions for summary judgment shall be filed and served not later than sixty days from the date of this order and defendants' replies, if any, shall be filed and served not later than fourteen days thereafter; and
5. Plaintiff's October 30, 2012 motion to shorten time (Docket ...