United States District Court, C.D. California
Present: The Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
CHAMBERS) - DEFENDANTS' MOTION FOR WRITTEN INDICATION
(Filed January 30, 2017, Dkt. 46)
Court finds this motion appropriate for decision without oral
argument. Fed.R.Civ.P. 78: Local Rule 7-15. Accordingly, the
hearing date of February 27, 2017, is vacated, and the matter
is hereby taken under submission.
action stems from shots fired by a police officer, Bartman
Horn, on October II, 2013. On September 7, 2015, defendants
moved to dismiss the complaint on the basis of qualified
immunity. Dkt. 23. The Court denied defendants' motion on
October 19, 2015. Dkt. 28. Thereafter, defendants filed an
interlocutory appeal. Dkt. 30.
moved to supplement the record on appeal, see Appellate Case
No. 15-56770, Dkt. 26, which the Ninth Circuit denied on
October 4, 2016, Dkt. 44.
proper appeal from a denial of qualified immunity
automatically divests the district court of jurisdiction to
require the appealing defendants to appear for trial."
Chuman v. Wright. 960 F.2d 104, 105 (9th Cir. 1992)
(citing Apostol v. Galhon, 870 F.2d 1335 (7th Cir.
1989)). However, the Ninth Circuit denied defendants'
motion to supplement the record:
without prejudice to counsel seeking a written indication
from the district court. . . that the district court is
inclined to consider a Rule 60(b) motion to allow the
district court to consider the new evidence in the first
instance if the court of appeals issues a limited remand.
44. On January 30, 2017, defendants filed the instant motion
seeking a written indication from the Court whether it is
inclined to consider a Rule 60(b) motion regarding the
Court's prior denial of qualified immunity. Dkt. 46. On
February 6, 2017, plaintiff filed an opposition, dkt. 48, and
a request to strike defendants' motion, dkt. 47. On
February 10, 2017, defendants filed a reply in support of
their motion. Dkt. 50.
carefully considered the parties' arguments, the Court
declines to offer written indication that it would entertain
a Rule 60(b) motion.
noted above, the Court lacks the necessary jurisdiction to
grant a Rule 60(b) motion. Nonetheless, pursuant to Federal
Rule of Civil Procedure 62.1, the Court may give a written
indication whether it would entertain such a motion if the
matter were remanded. See Russell Rd. Food &
Beverage. LLC v. Galam 585 F.App'x 745, 746 (9th
Cir. 2014) (district court has authority to entertain a Rule
62.1 motion). Federal Rule of Civil Procedure 62.1(a)
If a timely motion is made for relief that the court lacks
authority to grant because of an appeal that has been
docketed and is pending, the court may:
(3) state either that it would grant the motion if the court
of appeals remands for that purpose or that the motion ...