Opinion
No. 06-16450.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 26, 2007.
John L. Burris, Esq., Law Offices of John L. Burris, Oakland, CA, for Plaintiff-Appellee.
Robert A. Bonta, San Francisco City Attorney's Office, San Francisco, CA, for Defendants-Appellants.
Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. CV-03-03105-CRB.
Before: THOMAS, TALLMAN, and IKUTA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The Defendants appeal from the district court's order denying a motion for qualified immunity. We dismiss the appeal for lack of appellate jurisdiction.
A review of the record reveals that we lack jurisdiction over this appeal because the district court's order was not a final decision within the meaning of 28 U.S.C. § 1291.
In this case, both parties filed motions for summary judgment on the issue of qualified immunity. The district court did not issue a final merits decision on either motion. Rather, the district court denied both motions without prejudice and stayed further proceedings in the district court pending resolution by this Court of a parallel case, Bull, et al., v. City and County of San Francisco, et al, No. 06-15566. The district court granted the parties leave to re-notice their motions once a decision in Bull is issued. It is clear from the record that the district court did not intend its order to be a final resolution on the merits of the parties' respective cross-motions for summary judgment. See Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (holding that where a district court "planned to reconsider its ruling on the . . . summary judgment motion before the case went to the jury" the ruling was not a final decision because it was "`tentative, informal or incomplete'") (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). Rather, the district court intended simply to stay proceedings pending our resolution of Bull and to afford the parties a new opportunity to brief the question of qualified immunity after Bull is decided.
Generally, an order staying proceedings is not appealable unless the order would impose an indefinite or lengthy stay that would put the parties "effectively out of court." Blue Cross and Blue Shield of Alabama v. Unity Outpatient Surgery Center, Inc., 490 F.3d 718, 723 (9th Cir. 2007) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Such is not the case here.
Under these circumstances, the district court's decision was not a final order within the meaning of 28 U.S.C. § 1291, and we lack appellate jurisdiction over this interlocutory appeal.