R. Klein v. Timothy Cook ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
R. ANDRE KLEIN, on behalf of himself No. 15-16230
and all other stockholders of Apple Inc.,
D.C. No. 5:14-cv-03634-EJD
Plaintiff-Appellant,
v. MEMORANDUM*
TIMOTHY D. COOK; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted July 6, 2016
San Francisco, California
Before: SILVERMAN, and NGUYEN, Circuit Judges, and GARBIS,** District
Judge.
R. Andre Klein appeals from a temporary stay order issued by the district
court pursuant to its inherent power to control its docket. Because we lack
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
jurisdiction, we dismiss Klein’s appeal.
1. A stay order is generally not appealable under 28 U.S.C. § 1291. See, e.g.,
Stanley v. Chappell, 764 F.3d 990, 993-95 (9th Cir. 2014). Klein argues that the
district court’s order puts him “effectively out of court” and is therefore
immediately appealable under the doctrine of Moses H. Cone Mem’l Hospital v.
Mercury Constr. Corp., 460 U.S. 1, 9-10 (1983). Unlike the stay order in Moses
H. Cone, however, the district court here specifically contemplated ongoing
litigation of Klein’s claims in federal court: It expressly stated that it would
adjudicate Klein’s claims, repeatedly characterized its stay order as “temporary,”
and stressed that the state action “would not preclude [Klein’s prosecution of his
federal claim] altogether since [the district court] would retain jurisdiction over it.”
(emphasis added). Cf. Silberkleit v. Kantrowitz, 713 F.2d 433, 434 (9th Cir. 1983)
(stay order appealable where district court expressly held that “collateral estoppel
would resolve or limit the issues to be decided in federal court.”). Given this
careful, limiting language and Klein’s failure to establish a substantial possibility
that the state proceedings will bar his federal claim in this case, we cannot say that
“the sole purpose and effect of the stay” was “to surrender jurisdiction of a federal
suit to a state court.” Moses H. Cone, 460 U.S. at 10 n. 11. Cf. Lockyer v. Mirant
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Corp., 398 F.3d 1098, 1103 (9th Cir. 2005) (distinguishing appealable stay order
from “situations in which the district court clearly foresees and intends that
proceedings will resume after the stay has expired”) (citing Cofab, Inc. v. Phila.
Joint Bd., Amalgamated Clothing & Textile Workers’ Union, 141 F.3d 105, 109
(3d Cir. 1998) (holding that Moses H. Cone did not apply where the district court
had no intention to “‘deep six’ the suit”)).1
2. The temporary stay is not an appealable collateral order under Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Klein’s justification for his
immediate appeal of the stay is not “sufficiently strong to overcome the usual
benefits of deferring appeal until litigation concludes.” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 107 (2009). The substantive claim asserted by Klein
implicates an initial state law question that the district court acknowledged may
have no effect whatsoever on Klein’s federal claim. Some or all aspects of that
claim may yet be decided by the district court, and may ultimately be reviewable in
1
Klein cites to Cottrell v. Duke, 737 F.3d 1238 (8th Cir. 2013), but in that case,
the district court’s “stated objective was to surrender complete jurisdiction to [the
state court] and allow Delaware to fully adjudicate the controversy.” Id. at 1244.
In addition, the appellant there showed that the state proceeding would “have the
realistic effect of precluding any future proceedings in federal court.” Id.
(emphasis added). Klein failed to make a similar showing in this appeal.
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this court. On this record, Klein has not demonstrated that the propriety of the
temporary stay here is an issue “too important to be denied review.” Cohen, 337
U.S. at 546; cf. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878
(1994) (finding that refusal to enforce a settlement agreement did “not rise to the
level of importance needed for recognition under” the collateral order doctrine).
3. Because Klein failed to discuss any of the appropriate factors to decide
whether an otherwise non-appealable order should be treated as a petition for a writ
of mandamus, we decline to exercise jurisdiction on that basis. See Cheney v.
U.S. Dist. Court for D.C., 542 U.S. 367, 381 (2004) (petitioner must show right to
issuance of a writ is “clear and indisputable.”).
APPEAL DISMISSED.
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