The Ninth Circuit also said the Jan. 25, 2010 temporary stay order “is also not appealable” pursuant to 28. U.S. Code section 1292 as the parties did not seek permission from the U.S. District Court for the NMI under 28 U.S.C. section 1292 (b) to permit this interlocutory appeal.
The Ninth Circuit awarded costs to the appellees, Jane Roe, and John Doe.
The Ninth Circuit ruled that the federal court’s Jan. 25, 2010 order to stay proceedings “did not evince the district judge’s intention that it be the court’s final act in the matter.”
“To the contrary, the possibility of further action by the district court was apparent, given its concerns about the pace of post-judgment proceedings in the CNMI Superior Court,” the Ninth Circuit stated.
The Retirement Fund argued that then-Chief Judge Alex R. Munson’s issuance of a limited 60-day stay of proceedings pursuant to Colorado River Water Conservation District v. United States, 424U.S. 800 (1976) “is an appealable final order.”
Although the district court applied Colorado River when issuing the temporary stay, Moses H. Cone Memorial Hospital v. Mercury Construction Corp. (1983) “is inapplicable because the parties will not be deprived of a federal forum,” the Ninth Circuit stated.
“The district court clearly foresaw, and indeed intended on issuance, that proceedings would resume after the temporary stay expired,” the Ninth Circuit added.
The stay order “is also not appealable under the collateral-order exception” to section 1291, the Ninth Circuit ruled.
In this case, the Ninth Circuit said the Saipan district court “did not determine any disputed question or resolve any issue.”
In fact, the Ninth Circuit said, “it is clear to us that the district court intended to continue the litigation after gauging the progress of the post-judgment proceedings in the Superior Court. Thus, the temporary stay entered here does not fall within the limited class of decisions appealable under the collateral-order exception.”
