United States District Court, D. Oregon, Portland Division
SONIA BRAUN-SALINAS and GUILLERMO SALINAS, husband and wife, and ESTER MACEDO, individually, Plaintiff,
AMERICAN FAMILY INSURANCE GROUP d/b/a AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a foreign business corporation, Defendant.
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Plaintiffs Sonia Braun-Salinas, Guillermo Salinas, and Ester Macedo (collectively "Plaintiffs"), ask the court to reconsider the dismissal of Plaintiffs' claim for breach of the duty of good faith and fair dealing based on newly discovered evidence. The court finds the interlocutory judgment entered in this court and the acceptance of the appeal by the Ninth Circuit divests this court of jurisdiction over the issues raised in Plaintiffs' motion and, if it had jurisdiction, it would not grant the motion. Accordingly, the court denies Plaintiffs' implied request for an indicative ruling that, given the opportunity, the court it would grant the motion or that the motion raises a substantial issue. Plaintiffs' motion for reconsideration is denied as moot in light of the absence of jurisdiction.
Plaintiffs seek payments under insurance policies issued to Salinas and Braun-Salinas by defendant American Family Insurance Group ("American") for injuries sustained by Braun-Salinas and Macedo in a motor vehicle accident. American moved for partial summary judgment and on April 4, 2014, this court granted summary judgment on Plaintiffs' Second Claim for Relief for breach of the implied covenant of good faith and fair dealing. Braun-Salinas v. American Family Ins. Group, No. 3:13-CV-002640AC, 2014 WL 1333731 (D. Or. April 1, 2014).
Plaintiffs filed a Notice of Appeal on April 30, 2014. (Kocher-Moar Decl. Ex. 1.) On May 20, 2014, the Ninth Circuit issued an order noting the "district's order challenged in this appeal may not have disposed of the action as to all claims and all parties" and ordering Plaintiffs to either dismiss the action or show cause why the action should not be dismissed. Braun-Salinas v. American Family Ins. Group, No. 14-35369, Order, ECF No. 4 (9th Cir. May 20, 2014). In response, Plaintiffs filed a motion in this court seeking entry of a final judgment under FED. R. CIV. P. 54(b) and for leave to appeal an interlocutory order pursuant to 28 U.S.C. § 1292(b). This court granted the motion on June 30, 2014. (Kocher-Moar Decl. Ex. 2.) In an order dated October 23, 2014, the Ninth Circuit acknowledged the entry of the final judgment by this court cured the premature notice of appeal, denied Plaintiffs' petition for permission to appeal under 28 U.S.C. § 1292(b) as unnecessary, and set a briefing schedule requiring Plaintiffs to file an opening brief on December 1, 2014. (Kocher-Moar Decl. Ex. 3.) At Plaintiffs' request, the Ninth Circuit extended the opening brief deadline to December 31, 2014. Braun-Salinas, Order, ECF No. 12 (Nov. 26, 2014).
Plaintiffs filed the instant motion on December 23, 2014. This court set an abbreviated briefing schedule and oral argument for January 15, 2015. On December 30, 2014, Plaintiffs filed a motion in the Ninth Circuit seeking a limited remand to allow this court to rule on the pending motion for reconsideration, a stay of the appellate proceedings until the pending motion is resolved, and for an extension of the opening brief deadline to January 29, 2015. Braun-Salinas, Appellant's Mot. for Limited Remand, ECF No. 13 (Dec. 30, 2014). In the motion for limited remand, Plaintiffs represent this court's setting of the motion for limited reconsideration qualifies as a indicative ruling under FED. R. APP. P. 12.1.
Preliminary Procedural Matter
American argues that in light of the entry of the interlocutory judgment and the grant of the permission to appeal under 28 U.S.C. § 1292(b), and the Ninth Circuit's acceptance of the appeal, this court lacks jurisdiction to consider any matters addressed in, or related to, the interlocutory judgment. This court agrees. See City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001) ("[T]he filing of a notice of interlocutory appeal divests the district court of jurisdiction over the particular issues involved in that appeal... upon the issuance of an order by a court of appeals permitting an appellant to bring an interlocutory appeal.") The Ninth Circuit accepted the interlocutory appeal on October 23, 2014, divesting this court of jurisdiction on that date.
This, however, is not fatal to Plaintiffs' request for reconsideration. The court may consider Plaintiffs' motion as a request for an indicative ruling that it will entertain a Rule 60(b) motion despite the fact that an appeal is currently pending in the Ninth Circuit. Federal Rule of Civil Procedure 62.1 permits a district court to entertain a motion after an appeal has been filed upon the timely filing of a motion by a party seeking reconsideration of issues currently on appeal. Rule 62.1 provides that upon receipt of such motion, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
FED. R. CIV. P. 62.1(a). If the district court determines it either would grant the motion or that the motion raises a substantial issue, the party seeking reconsideration must promptly notify the appellate court of the district courts "indicative ruling". FED. R. CIV. P. 62.1(b). The district court may decide the merits of the motion for reconsideration if the court of appeal remands the action to the district court for that purpose. FED. R. CIV. P. 62.1(c). While not specifically requested, ...