Black Rock City v. Pershing Cty. Board of Comm'rs , 637 F. App'x 488 ( 2016 )

FILED
NOT FOR PUBLICATION
MAR 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLACK ROCK CITY, LLC, No. 14-15221
Plaintiff - Appellant, D.C. No. 3:12-CR-00435-RCJ-
VPC
v.
PERSHING COUNTY BOARD OF MEMORANDUM*
COMMISSIONERS, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted February 10, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and SCHROEDER and NGUYEN, Circuit
Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Black Rock City, LLC appeals the district court’s January 6, 2014 order
granting defendant James Shirley’s 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 court’s 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
1
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
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 court’s 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 counsel’s repeated
statements that the parties were not seeking the court’s 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
2
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); Nat’l 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 counsel’s comments as
“mealy-mouthed,” and suggested that counsel return to law school.
3
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.
4