-GSA Paiute-Shoshone Indians of The Bishop Community of the Bishop Colony v. City of Los Angeles, No. 1:2006cv00736 - Document 105 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION DENYING as MOOT 100 Request to Lift Stay and GRANTING Leave to Amend, signed by District Judge Oliver W. Wanger on 9/19/2011. (Kusamura, W)
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1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 7 PAIUTE-SHOSHONE INDIANS OF THE BISHOP COMMUNITY OF THE BISHOP COLONY, CALIFORNIA, a federally recognized Indian tribe, v. 9 CITY OF LOS ANGELES, a California municipal corporation, 11 Defendant. 12 13 14 15 16 MEMORANDUM DECISION DENYING AS MOOT REQUEST TO LIFT STAY AND GRANTING LEAVE TO AMEND (DOC. 100) Plaintiff, 8 10 1:06-cv-00736 OWW GSA I. INTRODUCTION Plaintiff, the Paiute-Shoshone Indians of the Bishop Community of The Bishop Colony, California (the Tribe ), moves to lift [the] administrative stay and for an order setting a 17 deadline for filing an amended complaint. 18 the City of Los Angeles ( the City ) opposes. 19 Plaintiff replied. 20 calendared for July 25, 2011, but the hearing was vacated after 21 22 Doc. 102. Doc. 100. Defendant, Doc. 101. The motion was originally the parties stipulated to have the matter decided on the papers. Doc. 103. 23 24 25 26 27 II. ANALYSIS On June 12, 2006, the Tribe brought a suit in ejectment to reclaim land in the Owens Valley that was transferred in 1941 by agents of the United States (purportedly acting in the name of 28 1 1 the Tribe) to the City. 2 conditions imposed by Congress on this transfer had not been not 3 satisfied, rendering the purported transfer null and void. 4 The Tribe alleged, generally, that the The City s motion to dismiss was granted on the ground that the 5 6 7 United States is an indispensable party that cannot be joined under Federal Rule of Civil Procedure 19. Doc. 73 ( Rule 19 8 Dismissal ). 9 2007 within which to file an amended complaint. 10 11 12 13 14 15 16 17 Plaintiff was granted 30 days from February 15, Id. at 48. On March 20, 2007, Plaintiff filed a stipulated motion for extension of time in which to file an amended complaint. Plaintiff specifically requested an extension until 30 days after the Court ruled on plaintiff s pending motion to amend [to allow an interlocutory appeal] and for a stay of proceedings. 76. That request was granted. Doc. Doc. 77. On July 30, 2007, the district court granted Plaintiff s 18 request for certification of an interlocutory appeal. 19 dated July 30, 2007. 20 mention the imposition of a stay pending the appeal, the City 21 Doc. 83, Because that decision did not specifically asserts that the time for filing of an appeal lapsed 30 days 22 23 24 later, on August 30, 2007. Under the governing statute, 28 U.S.C. § 1292, once the 25 district court issues a written order determining that an 26 interlocutory appeal is appropriate, a plaintiff has ten days to 27 apply to the Court of Appeals for permission to take the appeal. 28 2 1 § 1292(b). 2 the Court of Appeals for permission to take an interlocutory 3 appeal shall not stay proceedings in the district court unless 4 The statute specifically provides that application to the district judge or the Court of Appeals or a judge thereof 5 6 7 shall so order. Id. The City asserts that a stay while an interlocutory appeal 8 is pending is rarely, if ever, appropriate under any 9 circumstances, citing Fisons Limited v. United States, 458 F.2d 10 1241, 1248 n.16 (7th Cir. 1972). 11 another Circuit is not persuasive. 12 13 14 15 16 17 18 19 20 21 22 This forty-year-old case from There is more recent authority to the contrary: [A district] court has authority to stay this case pending an interlocutory appeal since section 1292(b) states: [A]pplication for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Here, resolution of the issue [on which the interlocutory appeal has been taken] would alter the direction of the current proceedings .... Assoc. of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d at 1092-93 (staying proceedings pending interlocutory appeal of order denying motion to dismiss Clean Air Act claim). Since three of Plaintiff's four claims against [defendant] are based upon [appealed issue], [i]t would be a waste of judicial and party resources to proceed with [these] claims while the appeal is pending. Id.... 23 Lakeland Village Homeowners Ass n v. Great Am. Ins. Group., 727 24 F. Supp. 2d 887, 897 (E.D. Cal. 2010). 25 26 27 28 Here, like in Lakeland, the thrust of Plaintiff s complaint involved claims tied up in the interlocutory appeal. It would have been appropriate at the 3 1 time the interlocutory appeal was certified to stay the case 2 pending resolution of the appeal. 3 4 The problem is that no such stay was ever entered. Plaintiff did request, if the interlocutory appeal was certified, 5 6 7 that the deadline for filing an amended complaint be stayed until thirty days following resolution of the interlocutory appeal. 8 Doc. 75-1 at 12. 9 not impose a stay, and Plaintiff did not move to correct this 10 inadvertent omission. 11 complaint passed while the appeal was pending. 12 13 14 15 However, the order granting certification did The deadline for the filing of an amended Nevertheless, even though Plaintiff missed the deadline for filing an amended complaint, a court should freely give leave when justice so requires. Fed. R. Civ. P. 15(a)(2). Where, as 16 here, a party has not had an opportunity to amend its original 17 complaint, leave generally shall be denied only upon a showing 18 of bad faith, undue delay, futility, or undue prejudice to the 19 opposing party. 20 F.3d ---, 2011 WL 2276774, *6 (9th Cir. Jun. 9, 2011). 21 Chudacoff v. Univ. Med. Ctr. of S. Nev., --The City does not assert bad faith, undue delay, or undue prejudice. 22 23 24 The City does argue that amendment of the complaint would be futile. Doc. 101 at 4-6. The City maintains that because the 25 Rule 19 Dismissal found that the claims in the original complaint 26 could not proceed without the United States, which could not be 27 joined, any amendment to the complaint which omits the federal 28 4 1 government s involvement and seeks to proceed solely against the 2 City in connection with the 1937 land transfer would be 3 insufficient and futile. 4 Id. at 5. This might be a valid basis for a finding of futility if Plaintiff had indicated its intent 5 6 7 to re-file a claim based on ejectment or a related cause of action. To the contrary, Plaintiff asserts in its reply that it 8 has other claims against the United States, including allegations 9 that the federal government failed to manage trust assets for the 10 benefit of the Tribe. Such claims are not obviously futile. 11 III. CONCLUSION 12 13 For the reasons set forth above, Plaintiff s motion to lift 14 the administrative stay is DENIED AS MOOT, as no such stay was 15 ever entered. 16 the complaint within thirty (30) days of electronic service of 17 this memorandum decision. 18 19 20 21 22 Nevertheless, Plaintiff is granted leave to amend Due to the pending retirement of the assigned district judge, the parties will shortly receive notice of reassignment of this case. That notice shall not alter the deadline for the filing of the amended complaint. 23 24 25 26 SO ORDERED Dated: September 19, 2011 /s/ Oliver W. Wanger United States District Judge 27 28 5
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