Argued and Submitted November 2, 2010.
Filed November 30, 2010.
Kevin Michael Cochrane, Cheryl A. Williams, Esquire, Williams Cochrane LLP, San Diego, CA, for Plaintiff-Appellee.
Teresa Michelle Laird, AGCA-Office of the California Attorney General, San Diego, CA, for Defendants-Appellants.
Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:09-cv-01955-LAB-AJB.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This case is remanded to the district court for reconsideration of all four of the Winter factors ( see Winter v. Natural Res. Def Council, 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008)), and to reanalyze them in light of our recent decisions in Alliance for Wild Rockies v. CottreU, 622 F.3d 1045 (9th Cir. 2010) (amended Sept. 22, 2010) (articulating a postWinter "sliding-scale" test), and Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California, 618 F.3d 1066 (9th Cir. 2010) (altering the Eastern District Court of California's interpretation of the IGRA Compact formula for determining the total number of Class III gaming licenses at issue). If upon reconsideration the district court determines injunctive relief is warranted, it must justify any alteration of the status quo. See Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804 (9th Cir. 1963).
Should there be another challenge to the district court's decision on remand regarding the propriety of continuing injunctive relief, the district court is directed to expeditiously proceed to address the merits of the underlying Compact litigation during the pendency of any further interlocutory appeal. See Britton v. Coop Banking Grp., 916 F.2d 1405, 1412 (9th Cir. 1990) ("[A]n appeal of an interlocutory order does not ordinarily deprive the district court of jurisdiction except with regard to the matters that are the subject of the appeal.") (citing Manual for Complex Litigation §§ 25.11, 25.16 (2d Ed.)).
Because this case is remanded to the district court, Appellee's July 15, 2010, motion to take judicial notice is denied as moot. The injunction is to stay in effect pending the district court's reconsideration. Each party shall bear its own costs. The panel will retain jurisdiction over any subsequent appeals.