VIVIAN WRIGHT-BOLTON V. MELANIE ANDRESS-TOBIASSON, No. 16-15317 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 17 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT VIVIAN WRIGHT-BOLTON, Plaintiff-Appellant, No. U.S. COURT OF APPEALS 16-15317 D.C. No. 2:14-cv-01612-APG-PAL v. MELANIE ANDRESS-TOBIASSON; KOCKA & BOLTON, LLC, MEMORANDUM * Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Submitted August 11, 2017** Pasadena, California Before: FARRIS, CALLAHAN, and OWENS, Circuit Judges. Vivian Wright-Bolton appeals from the District Court’s ruling granting summary judgment in favor of Judge Melanie Andress-Tobiasson based on Judge Andress-Tobiasson’s claim of absolute judicial immunity, and denying Wright- * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Bolton’s cross-motion for a stay of summary judgment pursuant to Federal Rule of Civil Procedure 56(d). Wright-Bolton’s suit alleged claims for violation of her civil rights under 42 U.S.C. § 1983, negligence, intentional infliction of emotional distress, and conspiracy in connection with Judge Andress-Tobiasson’s issuance of an order concerning Wright-Bolton’s divorce proceedings in a Canadian court. ER 204–08. As the parties are familiar with the facts, we do not recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1. We review a district court’s grant of summary judgment de novo. Fisher v. Kealoha, 855 F.3d 1067, 1069 (9th Cir. 2017). When neither party identifies any material fact in dispute, we need “consider only whether the district court correctly applied the law.” Id. We review a district court’s decision on a Rule 56(d) motion to stay summary judgment pending further discovery for abuse of discretion. Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). 2. A judge enjoys total immunity from suit for her actions except in two instances: when the judge’s actions are “nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity[,]” or when the judge’s actions, “though judicial in nature, [are] taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (internal citations omitted); see also Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). 2 The Supreme Court held in Stump that any deficiencies in form cannot make an otherwise judicial act, like an order, into a non-judicial act. 435 U.S. at 362–63. Indeed, the issuance of orders is a quintessential judicial act. Thus, we find that Judge Andress-Tobiasson’s actions were taken in her judicial capacity. Furthermore, although the jurisdiction of the Nevada Justice Court does not extend to the subject matter of Judge Andress-Tobiasson’s order, Nev. Rev. Stat. § 4.370, the relevant Canadian statute, Civil Marriage Act, S.C. 2005, c. 33, refers broadly to “a court located in the state where one of the spouses resides.” See ER 100. We have previously held that where a judge has a “colorable authority” for asserting jurisdiction, she has not acted in the “clear absence of all jurisdiction.” Crooks v. Maynard, 913 F.2d 699, 701 (9th Cir. 1990). Likewise, when a judge “misinterpret[s] a statute and erroneously exercise[s] jurisdiction[,]” she is not acting in the clear absence of jurisdiction. Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). Given the breadth of the Canadian statute, Judge AndressTobiasson acted with “colorable authority.” We find that Judge AndressTobiasson did not act in the “clear absence of all jurisdiction.” Stump, 435 U.S. at 357 (emphasis added) (internal quotation marks and citation marks omitted). 3. Finally, Wright-Bolton’s motion to stay the summary judgment proceedings pending further discovery failed to articulate the “the specific facts that [she] hope[d] to elicit from further discovery . . . .” California ex rel. Cal. 3 Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998); see ER 86–87; Blue 20–22. The district court therefore did not abuse its discretion in denying Wright-Bolton’s request. AFFIRMED. 4

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