United States District Court, D. Nevada
KENNETH BERBERICH, trustee, on behalf of 4499 Weitzman Place Trust, a Nevada Trust, and on behalf of all others similarly situated, ROES 1-20, 000, inclusive, and Jeff Brauer, Esq., Plaintiffs,
HONORABLE JOANNA S. KISHNER, District Judge, Defendant.
ORDER MOTION TO STAY (ECF NO. 16)
FERENBACH, UNITED STATES MAGISTRATE JUDGE
matter involves Plaintiff Kenneth Berberich, trustee, on
behalf of 4499 Weitzman Place Trust, a Nevada Trust, and on
behalf of all others similarly situated, ROES 1-20, 000,
inclusive, and Jeff Brauer, Esq.'s (collectively,
“Berberich's”) civil action against Defendant
Honorable Joanna S. Kishner (“Judge Kishner”).
Before the Court is Berberich's Motion to Stay
Proceedings (ECF No. 16), Judge Kishner's Response (ECF
No. 20), and the Berberich's Reply (ECF No. 22). For the
reasons stated below, Berberich's motion is
instant matter originates from an underlying state court
proceeding before Judge Kishner. In early 2016, Berberich
filed a derivative action in Nevada district court against
Berberich's community association for breach of fiduciary
duties. See ECF Nos. 22, n.6; 5 at 4. Berberich
alleges that on July 28, 2016, he filed a notice to
voluntarily dismiss the state court action pursuant to Nev.
R. Civ. P. 41(a)(1)(i). See ECF No. 5 at 4. Berberich
alleges that Judge Kishner signed an order by Berberich on
August 1, 2016. Id. On August 2, 2016, Berberich
claims that he filed Judge Kishner's signed order.
Id. The next day, Berberich alleges that a defendant
in the case filed a Nev. R. Civ. P. 60(b) motion to set aside
the August 2, 2016 signed order and for sanctions against
Berberich. Id. Berberich asserts that at a hearing
held on September 6, 2016 for the Nev. R. Civ. P. 60(b)
motion, Judge Kishner stated that the underlying case would
be dismissed upon filed notice that Berberich had repaid
defendants' filing fees. Id. That same day,
Berberich claims that he filed a notice of repayment of
filing fees. Id. Also on that same day, Berberich
alleges that he filed a notice of entry of order for the
court's August 2, 2016 order concerning Berberich's
notice of voluntary dismissal. Id.
October 14, 2016, Berberich alleges that Judge Kishner signed
an order that (1) reopened the underlying case, (2) struck
Berberich's first voluntary dismissal, and (3) denied
defendants' request for Nev. R. Civ. P. 60(b) sanctions.
Id. at 5. On December 22, 2016, Berberich alleges
that he filed a second Nev. R. Civ. P. 41(a)(1)(i) notice of
voluntary dismissal. Id. On December 28, 2016,
Berberich claims that Judge Kishner issued a written order to
show cause that required Berberich's counsel to appear in
person on January 10, 2017, to explain why sanctions should
not be issued for failure to comply with the lower
court's scheduling of an early case conference.
Id. At 6:00 A.M. on January 10, 2017, Berberich
alleges that he filed notice that he would be unavailable to
attend the show cause hearing later that day. See
ECF No. 5 at 5. Berberich asserts that at that hearing, Judge
Kishner stated her intent to sanction Berberich. Id.
Judge Kishner, according to Berberich, issued a written order
on February 24, 2017, that, among other things, sanctioned
Berberich, threatened additional, unspecified future
financial penalties and other punishment, and dismissed
Berberich's amended complaint with prejudice.
Id.; 22 at 5, 8, 12. On March 9, 2017, Berberich
alleges that two of the defendants submitted a motion for
March 20, 2017, Berberich filed a notice of appeal regarding
the February 24, 2017 order. On the same day, Berberich
brought claims in Federal Court against Judge Kishner for
negligence, intentional infliction of emotional distress, and
for allegedly violating Berberich's due process rights
under 42 U.S.C. § 1983. ECF Nos. 1; 5. All of the
federal claims stem from actions Judge Kishner allegedly took
after Berberich filed notices of voluntary dismissal on
August 2, 2016 and December 22, 2016, including Judge
Kishner's December 28, 2016 order to show cause and
February 24, 2017 order dismissing the amended complaint with
prejudice. Berberich asserts that the main issue in the
appeal before the Nevada Supreme Court and the instant action
is whether Judge Kishner had jurisdiction to issue an order
that affected the merits of a case after Berberich filed
notice of voluntary dismissal in the absence of a motion to
reopen the case. Berberich now moves to stay this action
pending the resolution of the state court appeal.
Legal Standard for a Stay
district court has discretionary power to stay proceedings in
its own court. See Landis v. N.A. Co., 299 U.S. 248,
254-255 (1936) (“[T]he power to stay proceedings is
incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for
litigants.”); see also Leyva v. Certified Grocers
of California, Ltd., 593 F.2d 857, 863-64 (9th Cir.
1979) (“A trial court may, with propriety, find it is
efficient for its own docket and the fairest course for the
parties to enter a stay of an action before it, pending
resolution of independent proceedings which bear upon the
case…”); 7C Charles Alan Wright, Arthur R.
Miller & Richard L. Marcus, Federal Practice and
Procedure, § 1838 (3d ed. 2010) (“[W]hether
to grant a stay in a particular case is a matter addressed to
the sound discretion of the district court.”).
considering a motion to stay, the district court must weigh
the competing interests that will be affected by the granting
or refusal to grant a stay. Among those competing interests
are: (1) potential prejudice to the non-moving party; (2)
hardship and inequity to the moving party if the action is
not stayed; and (3) the judicial resources that would be
saved by avoiding duplicative litigation if the cases are in
fact consolidated. See Lockyer v. Mirant, 398 F.3d
1098, 1110 (9th Cir. 2005); see also Landis, 299
U.S. at 255 (“[I]f there is even a fair possibility
that the stay … will work damage to some one else,
” the moving party “must make out a clear case of
hardship or inequity.”); but see Dependable Highway
Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066
(9th Cir. 2007) (“[C]ase management standing alone is
not necessarily a sufficient ground to stay
proceedings”). A stay, however, “should not be
granted unless it appears likely the other proceedings will
be concluded within a reasonable time in relation to the
urgency of the claims presented to the court.”
Id. The burden is on the movant to show that a stay
is appropriate. See Clinton v. Jones, 520 U.S. 681,
Whether a Landis Stay is Appropriate
Berberich argues that the issues in this action are
“largely a matter of Nevada law” and are
“inextricably related” to the appeal now before
the Nevada Supreme Court. See ECF Nos. 16 at 4; 22
at 8-9. The issue before the Nevada Supreme Court-the scope
of a trial court's jurisdiction subsequent to a plaintiff
filing a notice of voluntary dismissal and paying the
defendant's filing fees under Nev. R. Civ. P.
41(a)(1)(i)-is one of first impression in Nevada, and
Berberich asserts that the Nevada Supreme Court's pending
decision “will lend crucial direction and clarity to
the disputed matters herein.” See ECF Nos. 16
at 4, 6; 22 at 8-9. The outcome of the state court appeal,
Berberich argues, will significantly impact both the factual
and legal disputes at the heart of this action and
“there is no reason to rehash these same issues
now.” Id. at 7. According to Berberich, the
stay would not prejudice either party because the amended
complaint was only recently filed and served. Id.
Berberich also argues that a stay serves the interests of
both parties, as it would narrow the issues for trial,
minimize attorneys' fees and costs, and clarify the scope
of discovery. Id.
Kishner responds that a stay would, among other things,
impose unnecessary delay on the resolution of this matter.
See ECF No. 20 at 5-6. Judge Kishner asserts that
Berberich's state court appeal will not resolve this case
because no state ruling would terminate or even substantially
narrow any federal question presented. Id. at 4.
And, pointing to Fed.R.Civ.P. 1's directive to secure the
just, speedy, and inexpensive determination of every civil
action and proceeding, Judge Kishner argues that a stay
“would serve no purpose other than the unnecessary
delay of a determination that … [she] is entitled to
judicial immunity.” Id. at 4-5. Judge Kishner
also directs the Court to her pending Motion to Dismiss which
is premised in large part on the issue of judicial immunity.
Id. at 5-6. Based on the principles undergirding
judicial immunity, Judge Kishner argues that an
“expeditious resolution of this litigation” is of
paramount importance. Id.
Court has considered the various competing interests and
finds that a stay of the instant action is not warranted.
First, the potential prejudice to Judge Kishner is not
insignificant. Immunity provisions are meant to protect
judges not just from damages being assessed against them, but
from suit itself. See Ashcroft v. Iqbal, 556 U.S.
662, 685 (2009). The United States Supreme Court has
repeatedly “stressed the importance of resolving
immunity questions at the earliest possible stage in
litigation, ” making it especially apt for resolution
on a motion to dismiss. See Hunter v. Bryant, 502,
U.S. 224, 227 (1991) (per curiam); see also Mireles v.
Waco, 502 U.S. 9, 11 (1991); Imbler v. Pachtam,
424 U.S. 409, 419 n.13 (1976) (“[A]bsolute immunity
defeats a suit at the outset.”). Judge Kishner's
Motion to Dismiss, including Berberich's Response, and
Judge Kishner's Reply, are now before the District Court,
and the balance of interests strongly favors prompt