Faiza Pauly, et al v. Stanford Health Care
| MAKENZIE PAULY |
| FAIZA MARIE PAULY |
| STANFORD HEALTH CARE, FKA Stanford Hospital and Clinics |
| 19-15972 |
| May 6, 2019 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
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| Filing 4 Filed order (RICHARD R. CLIFTON, N. RANDY SMITH and MICHELLE T. FRIEDLAND) On April 19, 2019, the district court entered an order granting in part and denying in part defendant-appellees motion to dismiss the complaint. On May 3, 2019, pro se plaintiff-appellant Faiza Marie Pauly filed a notice of appeal of the April 19, 2019 partial dismissal order, resulting in the opening of appeal No. 19-15972. On May 3, 2019, plaintiffs-appellants also filed a motion in the district court seeking leave of the district court to file an appeal of the April 19, 2019 partial dismissal order with this court pursuant to 28 U.S.C. 1292(b). On May 20, 2019, the district court granted plaintiffs-appellants motion for permission to appeal, certified the April 19, 2019 order for immediate appeal pursuant to 28 U.S.C. 1292(b), and stayed district court proceedings pending appeal. On May 24, 2019, pro se plaintiff-appellant Makenzie Pauly filed a notice of appeal of the April 19, 2019 order in the district court, resulting in the opening of appeal No. 19-16096. Pursuant to 28 U.S.C. 1292(b), a district judge may certify for immediate appeal an otherwise nonappealable order in a civil action if it involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. 1292(b). The court of appeals then has discretion to permit an appeal from a certified order, if a petition for permission to appeal is filed in the court of appeals within 10 days after entry of the order in district court. See 28 U.S.C. 1292(b) (district court has jurisdiction over appeal of order certified by district court pursuant to 1292(b) if application is made to it within ten days after the entry of the order); Fed. R. App. P. 5. A review of this courts records reflect that plaintiffs-appellants did not file a timely petition in this court for permission to appeal pursuant to 28 U.S.C. 1292(b) and Federal Rule of Appellate Procedure 5. We therefore lack jurisdiction to permit an appeal from the certified order pursuant to 28 U.S.C. 1292(b). See Stone v. Heckler, 722 F2d 464, 466 (9th Cir. 1983) (court of appeals lacked jurisdiction to review orders certified by district court under 1292(b) where appellant failed to petition appellate court for permission to appeal). Accordingly, we dismiss these appeals for lack of jurisdiction. See 28 U.S.C. 1291; Fed. R. App. P. 54(b); Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981) (order is not appealable unless it disposes of all claims as to all parties or judgment is entered in compliance with rule). These dismissals are without prejudice to appellants seeking to have the district court recertify the interlocutory order for appeal, and filing a timely petition for permission to appeal from the recertified order in this court pursuant to 28 U.S.C. 1292(b) and Federal Rule of Appellate Procedure 5. See In re Benny, 812 F.2d 1133, 1137 (9th Cir. 1987) (court of appeals may exercise jurisdiction over a recertified interlocutory appeal if it determines that jurisdiction over the appeal would serve judicial efficiency). All pending motions are denied as moot. DISMISSED. [11345602] [19-15972, 19-16096] (JMR) [Entered: 06/26/2019 02:32 PM] |
| Filing 3 Filed Appellant Faiza Marie Pauly motion to extend time to file appellant opening brief. Deficiencies: None. Served on 06/18/2019. [11339630] (QDL) [Entered: 06/20/2019 03:16 PM] |
| Filing 2 Filed Appellant Faiza Marie Pauly motion to consolidate case numbers 19-15972 and 19-16096. Deficiencies: None. Served on 06/18/2019. [11339625] (QDL) [Entered: 06/20/2019 03:14 PM] |
| Filing 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL AND PRO SE APPELLANT. SEND MQ: No. The schedule is set as follows: Appellant Faiza Marie Pauly opening brief due 07/02/2019. Appellee Stanford Health Care answering brief due 08/01/2019. Appellant's optional reply brief is due 21 days after service of the answering brief. [11288001] (HC) [Entered: 05/06/2019 02:41 PM] |
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