Beruflich Dokumente
Kultur Dokumente
FILED
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
MAR 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
No. 14-15221
D.C. No. 3:12-CR-00435-RCJVPC
v.
PERSHING COUNTY BOARD OF
COMMISSIONERS, et al.,
MEMORANDUM*
Defendants - Appellees.
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Black Rock City, LLC appeals the district courts January 6, 2014 order
granting defendant James Shirleys motion for summary judgment and denying a
proposed order to dismiss the matter with prejudice under Federal Rule of Civil
Procedure 41(a)(2). We have jurisdiction under 28 U.S.C. 1291. We vacate and
remand.
1. All parties, with the exception of Appellee Shirley, argue on appeal that
the district court had no authority to issue the January 6, 2014 order. We agree.
The district courts jurisdiction expired roughly six weeks earlier, on November
25, 2013, when the parties filed a stipulation for voluntary dismissal pursuant to
Federal Rule of Civil Procedure 41(a)(1).1 See Fed. R. Civ. P. 41(a)(1)(A)(ii)
(allowing voluntary dismissal without a court order where all parties sign a
stipulation to that effect); Duke Energy Trading & Mktg., LLC v. Davis, 267 F.3d
1042, 1049 (9th Cir. 2001). All parties signed the November 25, 2013 stipulation,
and there is no dispute on appeal as to its validity. Unlike their first attempt to end
this matter pursuant to Rule 41(a)(2), the parties did not ask the district court to
retain jurisdiction, and voluntary dismissal under Rule 41(a)(1) automatically
The fact that parties have entered into a settlement agreement does not
render this appeal moot. Where district courts have issued wrongful orders, this
court has exercised the power to vacate them. See 28 U.S.C. 2106; Envtl. Prot.
Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1073 (9th Cir. 2001).
2
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terminates the action without operation of a court order. See Commercial Space
Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999). Despite the plain
language of Rule 41(a)(1), the district court in its January 6, 2014 order offers no
theory of jurisdiction; indeed, it does not even mention the November 25, 2013
stipulation.
2. We have in the past expressed concern over the district courts handling
of a number of cases that have reached this court,2 and we unfortunately must do so
again here. At a hearing, called sua sponte in response to the parties first attempt
to end this case via Rule 41(a)(2), Judge Jones excoriated and mocked counsel3 and
offered lengthy criticisms of the settlement agreement despite counsels repeated
statements that the parties were not seeking the courts approval. Against this
backdrop, and ignoring the parties clear intentions to resolve this matter, the
January 6, 2014 order followed. On remand, we instruct the Chief Judge of the
See United States v. Estate of Hage, 810 F.3d 712, 721-24 (9th Cir. 2016);
United States v. U. S. Dist. Court (In re United States), 791 F.3d 945, 957-60 (9th
Cir. 2015); Natl Council of La Raza v. Cegavske, 800 F.3d 1032, 1045-46 (9th
Cir. 2015); Benvin v. U.S. Dist. Court (In re Benvin), 791 F.3d 1096, 1104 (9th Cir.
2015) (per curiam); Townley v. Miller, 693 F.3d 1041, 1043-45 (9th Cir. 2012)
(order) (Reinhardt, J., concurring).
3
Among other things, Judge Jones: noted his own laughter on the record,
repeatedly lobbed accusations of malpractice, described counsels comments as
mealy-mouthed, and suggested that counsel return to law school.
3
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District of Nevada to assign the case to a different district judge to vacate the
January 6, 2014 order and judgment.
We need not reach the remaining issues raised on appeal.
VACATED and REMANDED with instructions.
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This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion to
stay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)
A.
B.
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
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(2)
See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).
(3)
Statement of Counsel
(4)
Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
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The Bill of Costs must be filed within 14 days after entry of judgment.
Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 551640526 (Attn: Jean Green, Senior Publications Coordinator);
and electronically file a copy of the letter via the appellate ECF system by using
File Correspondence to Court, or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.
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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)
v.
The Clerk is requested to tax the following costs against:
Cost Taxable
under FRAP 39,
28 U.S.C. 1920,
9th Cir. R. 39-1
REQUESTED
(Each Column Must Be Completed)
No. of
Docs.
Pages per
Doc.
TOTAL
COST
Cost per
Page*
ALLOWED
(To Be Completed by the Clerk)
No. of
Docs.
Cost per
Page*
Pages per
Doc.
TOTAL
COST
Excerpt of Record
Opening Brief
Answering Brief
Reply Brief
Other**
TOTAL: $
TOTAL: $
* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed
pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be
considered.
Attorneys' fees cannot be requested on this form.
Continue to next page
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Form 10. Bill of Costs - Continued
I,
, swear under penalty of perjury that the services for which costs are taxed
were actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature
("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:
Attorney for:
, Deputy Clerk