Vivian Wright-Bolton v. Melanie Andress-Tobiasson , 696 F. App'x 258 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIVIAN WRIGHT-BOLTON, No. 16-15317
Plaintiff-Appellant, D.C. No.
2:14-cv-01612-APG-PAL
v.
MELANIE ANDRESS-TOBIASSON; MEMORANDUM *
KOCKA & BOLTON, LLC,
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).
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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 Andress-
Tobiasson acted with “colorable authority.” We find that Judge Andress-
Tobiasson 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