Opinion
Case No. 03-2513-CM
January 6, 2004
MEMORANDUM AND ORDER
On December 19, 2003, plaintiff Bank of Blue Valley ("BBV") filed its Notice of Interlocutory Appeal of the Court's denial of plaintiff's Motion for Preliminary Injunction. BBV has filed a Motion to Stay (Doc. 48), requesting an order staying the case until ten (10) days after the United States Court of Appeals for the Tenth Circuit issues a decision or otherwise disposes of the appeal.
In general, the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 378 (1985). One exception is that a district court retains authority to proceed with an action on the merits pending an interlocutory appeal of the grant or denial of a preliminary injunction. Colorado v. Idarado Mining Co., 916 F.2d 1486, 1490 n. 2 (10th Cir. 1990). However, with the exception of certain defective appeals, a district court must refrain from ruling on issues over which appellate review is imminent. Mountain Solutions, Inc. v. State Corp. Comm'n of Kan., 982 F. Supp. 812, 816 (D. Kan. 1997) (citing 16 Charles A. Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 3921.2 at 56 (2d ed. 1997)).
The court finds that, in this case, the issues raised in defendants' pending counterclaim are inextricably intertwined with the issue raised on appeal. The court therefore concludes that a stay of this case pending appeal is warranted. See International Paper Co. v. Whitson, 595 F.2d 559, 561-62 (10th Cir. 1979) (filing of a notice of appeal divests the district court of jurisdiction over questions raised and decided in the appealed order).
As such, for the reasons stated in Plaintiff's Motion to Stay Case Pending Appeal and for Extension of Time to Answer or Otherwise Respond to Defendant's Counterclaim and for good cause shown, it is hereby ORDERED
(1) that the motion is granted;
(2) that this case is stayed until ten (10) days after the United States Court of Appeals for the Tenth Circuit issues a decision or otherwise disposes of the appeal brought by plaintiff under the Notice of Interlocutory Appeal (Doc. 47); and
(3) that the deadline for plaintiff to answer or otherwise respond to defendant North American Savings Bank, F.S.B.'s ["NASB"] Counterclaim (Doc. 42) is extended up to and through ten (10) days after the United States Court of Appeals for the Tenth Circuit issues a decision or otherwise disposes of the appeal brought by plaintiff under the Notice of Interlocutory Appeal (Doc. 47).
IT IS SO ORDERED.