“[W]e have ‘jurisdiction only to decide whether the district court erred in concluding as a matter of law that officials are not entitled to qualified immunity on a given set of facts.’”
How later courts described this case
- “[W]e have ‘jurisdiction only to decide whether the district court erred in concluding as a matter of law that officials are not entitled to qualified immunity on a given set of facts.’”
- “The denial of an immunity defense may be subject to interlocutory appeal.”
- “Absent an underlying, predicate motion, there is no basis for relief under Rule 62.1.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RENATA SINGLETON ET AL. CIVIL ACTION
VERSUS NO: 17-10721
LEON CANNIZZARO ET AL. SECTION: “H”
ORDER AND REASONS
Before the Court are Defendants’ Motion to Confirm a Stay of
Proceedings (Doc. 121) and Plaintiffs’ Rule 62.1 Motion for an Indicative Ruling
(Doc. 141). For the following reasons, the Motions are DENIED.
BACKGROUND
This is a civil rights lawsuit brought by victims and witnesses of crimes
against Orleans Parish District Attorney Leon Cannizzaro and a handful of his
assistant district attorneys.1 Plaintiffs allege that Defendants violated the U.S.
Constitution and Louisiana law by fraudulently compelling them to cooperate
in criminal prosecutions. Plaintiffs seek monetary damages and injunctive
relief from Defendants.
On March 1, 2018, Defendants filed a Joint Motion to Dismiss Plaintiffs’
claims.2 Defendants argued that they enjoyed both absolute and qualified
immunity from many of Plaintiffs’ claims seeking monetary damages from the
1 This Court has previously detailed the background of this lawsuit, and it need not do so
again here. See Doc. 116 at 1–6.
2 See Doc. 63.
Defendants in their individual capacities. Defendants also argued that, with
respect to many of Plaintiffs’ claims, Plaintiffs had failed to state claims on
which relief could be granted and that many of the same claims were
prescribed. For one reason or another, Defendants argued that all of Plaintiffs’
claims should be dismissed.
On February 28, 2019, the Court dismissed some, but not all, of
Plaintiffs’ claims.3 Shortly thereafter, on March 12, 2019, Defendants filed a
Notice of Appeal of this Court’s February 28, 2019 Order and Reasons.4 Two
days after that, Defendants filed the instant Motion to Confirm a Stay of these
proceedings pending the Fifth Circuit’s ruling on Defendants’ appeal.5
In their Motion, Defendants argued that they are entitled to a stay of the
proceedings before this Court while the Fifth Circuit considers their appeal.
Because this Court’s decision depends in part on the issues being appealed, the
Court on April 29, 2019 ordered Defendants to specify the issues they were
appealing.6 In response, Defendants argued that “most of the claims in this
case are encompassed within the Defendants’ appeal.”7 Plaintiffs disagree. It
is their position that the appealable issues are much narrower than
Defendants suggest, and that the Fifth Circuit actually lacks jurisdiction to
hear some of the issues Defendants are trying to appeal.
The briefing on Defendants’ Motion to Confirm a Stay eventually led
Plaintiffs to file a Rule 62.1 Motion for an Indicative Ruling. In that Motion,
Plaintiffs ultimately seek a ruling from this Court that it would allow Plaintiffs
to voluntarily dismiss their § 1983 failure to supervise and failure to intervene
3 See Doc. 116.
4 Doc. 118. The appeal bears Case No. 19-30197 at the Fifth Circuit.
5 Doc. 121.
6 See Doc. 137.
7 Doc. 138 at 1.
claims.8 Defendants oppose the Motion as procedurally improper even though
they do not oppose the ultimate dismissal of the claims Plaintiffs seek to
voluntarily dismiss.9
The Court will address Defendants’ Motion to Confirm a Stay of these
proceedings before turning to Plaintiffs’ Rule 62.1 Motion for an Indicative
Ruling.
LAW AND ANALYSIS
I. Motion to Confirm a Stay of Proceedings
“Although appeals transfer jurisdiction from the district court to the
appellate court concerning ‘those aspects of the case involved in the appeal,’
the district court is nonetheless free to adjudicate matters that are not involved
in that appeal.”10 This is true even when a party appeals a district court’s
finding that absolute immunity does not apply to certain conduct or that
qualified immunity does not apply to certain claims.11
At this point, several aspects of this Court’s February 28, 2019 Order
and Reasons bear repeating. First, the Court held that the Defendants enjoyed
absolute immunity from some—but not all—of Plaintiffs’ claims.12 Specifically,
the Court held that “[t]he Individual Defendants are not absolutely immune
for claims seeking damages based on allegations of: (1) creating or issuing
‘subpoenas’ to Plaintiffs and (2) failures to supervise or intervene in the
8 See Doc. 146 at 3.
9 See Doc. 143 at 2.
10 Weingarten Realty Inv’rs v. Miller, 661 F.3d 904, 908 (5th Cir. 2011) (quoting Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 59 (1982)) (citations omitted).
11 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 468 (5th Cir. 2014) (“[W]e have
‘jurisdiction only to decide whether the district court erred in concluding as a matter of law
that officials are not entitled to qualified immunity on a given set of facts.’”) (quoting
Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc)).
12 Doc. 116 at 17.
aforementioned conduct.”13 This holding embodies the core of Defendants’
pending appeal.
This Court recognizes that Defendants are entitled to an interlocutory
appeal of an order denying them absolute immunity in some respects.14 What
this Court fails to recognize, however, is how such an appeal divests the Court
of jurisdiction to proceed regarding Plaintiffs’ remaining claims.
In contending that “most” of Plaintiffs’ claims in this case are
encompassed within their appeal, Defendants rely heavily on this Court’s
alleged “denial of qualified immunity in part.”15 More specifically, Defendants
argue that this Court denied Defendants Cannizzaro, Martin, and Pipes
qualified immunity from claims based on their alleged failure to supervise and
failure to intervene in the alleged creation and use of “subpoenas.”
This Court did no such thing. In a 45-page memorandum in support of
their Joint Motion to Dismiss, which appeared to challenge all of Plaintiffs’
numerous claims on one ground or another, Defendants devoted two
paragraphs to Plaintiffs’ § 1983 failure to supervise and failure to intervene
claims.16 The section reads, in its entirety:
The Plaintiffs allege that Mr. Cannizzaro, Mr. Martin,
and Mr. Pipes are liable for the specific alleged
violations of the First, Fourth, and Fourteenth
Amendments described above because they failed to
adequately train, supervise, and discipline the
attorneys and agents under his supervision.
Complaint at ¶ 434. The Plaintiffs further allege that
Mr. Martin “directly instructed” the other Individual
Defendants to engage in the conduct that allegedly
violated the Plaintiffs’ rights. However, because the
13 Id.
14 See Keko v. Hingle, 318 F.3d 639, 642 n. 3 (5th Cir. 2003) (“The denial of an immunity
defense may be subject to interlocutory appeal.”).
15 Doc. 138 at 2.
16 See Doc. 63-1 at 45–46.
Plaintiffs have not adequately alleged any actionable
violation of their rights, these supervisory-liability
claims necessarily fail.
The Plaintiffs further allege that each of the
Individual Defendants is liable for the wrongdoing of
each of the others because they “knew or should have
known that they and others within the District
Attorney’s Office were violating Plaintiffs’
constitutional rights” yet acted with deliberate
indifference in failing to intervene. Id. at ¶¶ 437–438.
Again, in the absence of any underlying actionable
constitutional violations, such secondary claims
necessarily fail. Further, such conclusory allegations
lack the factual specificity necessary to plausibly
allege that any of the Individual Defendants acted
with deliberate indifference with respect to alleged
wrongdoing by others within the DA’s office.17
To the extent Defendants raised a qualified immunity defense in these two
paragraphs, this Court failed to recognize it as such. Defendants’
Memorandum in support of their Motion to Dismiss specifically outlined
qualified immunity challenges to the vast majority of Plaintiffs’ claims.18 No
such challenge appeared in the paragraphs challenging Plaintiffs’ failure to
supervise and failure to intervene claims.19
In its February 28, 2019 Order and Reasons, this Court granted
Defendants qualified immunity from every claim seeking monetary damages
from an individual to the extent that such an argument was raised.20
Defendants cannot appeal rulings that this Court did not issue.21 Accordingly,
17 Doc. 63-1 at 45–46.
18 See id. at 2–4.
19 See id. at 4, 45–46.
20 See Doc. 116.
21 See 28 U.S.C. §§ 1291–92.
this Court does not believe that any issue involving qualified immunity is
currently pending before the Fifth Circuit.
Under 28 U.S.C. § 1291, federal appellate courts possess jurisdiction over
“all final decision of the district courts of the United States.” An order denying
a motion to dismiss is not ordinarily a “final decision” that falls within the
appellate court’s jurisdiction.22 As stated by the Supreme Court and recently
noted by the Fifth Circuit, “interlocutory appeals—appeals before the end of
district court proceedings—are the exception, not the rule.”23
Here, Defendants are attempting to turn the collateral order doctrine
into the rule rather than the exception. This Court is unpersuaded that
Defendants’ appeal is as far-reaching as they suggest. Although Defendants
could have sought certification from this Court that its February 28, 2019
Order and Reasons was a final appealable order pursuant to 28 U.S.C. §
1292(b), they did not do so.
This Court believes that even if Defendants receive a favorable ruling
from the Fifth Circuit, most of Plaintiffs’ claims will remain. That is, even if
the Fifth Circuit finds that Defendants are entitled to absolute immunity for
the creation and use of “subpoenas,” Plaintiffs numerous claims seeking
injunctive relief and seeking damages from Cannizzaro in his official capacity
will remain. This Court sees no reason to stay litigation that will proceed
similarly regardless of how the Fifth Circuit rules on Defendants’ appeal.
Accordingly, Defendants’ request for a stay is denied.
22 See Armstrong v. Ashley, 918 F.3d 419, 421–22 (5th Cir. 2019).
23 Id. (quoting Johnson v. Jones, 515 U.S. 304, 309, (1995)).
II. Rule 62.1 Motion for an Indicative Ruling
Federal Rule of Civil Procedure 62.1(a) provides, in relevant part:
If a timely motion is made for relief that the court lacks
authority to grant because of an appeal that has been
docketed and is pending, 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.24
Under the Rule’s plain text, “a timely motion” that the Court lacks the
jurisdiction to entertain must be made before the Court can indicate how it
would rule on such a motion.25 This makes sense: courts cannot indicate how
they would rule on motions that have not been made.
In this case, however, Plaintiffs are seeking an indicative ruling on a
motion that has not been made. Plaintiffs’ memorandum in support of their
Rule 62.1 Motion states:
Plaintiffs ask the Court to indicate that, with a limited
remand from the Fifth Circuit for this purpose, it
would either amend its February 28, 2019 order to
dismiss the individual damages claims against
supervisors for failure to train and failure to
supervise, or, in the alternative, allow Plaintiffs to
amend their Second Amended Complaint in order to
withdraw the individual damages claims against
Defendants Cannizzaro, Martin, and Pipes based on
failure to supervise and failure to intervene.26
24 FED R. CIV. P. 62.1(a).
25 See id.
26 Doc. 141 at 1–2.
Plaintiffs, however, have not moved either for an amendment of this Court’s
February 28, 2019 Order and Reasons or for leave to amend their Second
Amended Complaint.
Plaintiffs argue that neither the text of Rule 62.1 nor any case law
requires that a predicate motion be filed before a court can issue an indicative
ruling.27 Again, as this Court has already explained, the text of the Rule clearly
requires a predicate motion to have been filed—the Rule would not otherwise
make sense. Although Plaintiffs cite two cases for the proposition that “courts
regularly consider and act upon Rule 62.1 motions without requiring a
predicate motion,”28 these two cases do not clearly support this proposition.
In the first, Metalcraft of Mayville, Inc. v. Toro Company, the issue was
whether Rule 62.1 required a party to file a predicate motion for an indicative
ruling before an appeal was made, not whether the Rule required a party to
file a predicate motion before filing a motion for an indicative ruling.29 The
party seeking the indicative ruling in Metalcraft argued that it had actually
moved for the relief on which it sought an indicative ruling in “a combined
motion for [the relief it sought] . . . and for an indicative ruling.”30
Similarly, in Sterrett v. Cowan, it is unclear from the records available
to this Court whether the party seeking an indicative ruling had filed a
predicate motion on which it sought the indicative ruling.31 In any event, in
Sterrett, the motion for an indicative ruling was ultimately granted “to Effect
Terms of Settlement.”32 The relief Plaintiffs seek here—effectively a voluntary
27 Doc. 146 at 2.
28 Id.
29 Metalcraft of Mayville, Inc. v. Toro Co., No. 16-CV-544, 2016 WL 8737777, at *1–2 (E.D.
Wis. Nov. 18, 2016).
30 Id. at *1.
31 See Sterrett v. Cowan, No. 2:14-CV-11619, 2015 WL 13719720, at *1 (E.D. Mich. Sept. 30,
2015).
32 Id. at *1.
dismissal of a very narrow set of claims in the context of a suit with many other
claims—is sufficiently different that this Court does not find the court’s
decision in Sterrett persuasive.
At least two courts outside the Fifth Circuit have interpreted Rule 62.1
the same way that this Court does, i.e., that a party must file a predicate
motion for relief before a court can indicate how it would rule on such a
motion.33 Because Plaintiffs have not filed a predicate motion seeking any type
of relief, this Court cannot indicate—at least not pursuant to Rule 62.1—how
it would rule on such a motion.
Nevertheless, to promote judicial economy, the Court will make one note
in the event that it may aid the Fifth Circuit in ruling on Defendants’ appeal.
Plaintiffs indicated in a reply brief in support of their Rule 62.1 Motion that
they “ultimately seek[] the termination of the [§ 1983 failure to supervise and
failure to intervene] claims, either through a clarification of the Court’s order
of dismissal or an amendment of the Second Amended Complaint under Rule
15.”34 Defendants, in opposing Plaintiffs’ Motion, made the following
statement:
To be clear: the Defendants do not oppose the
dismissal of the claims against Mr. Cannizzaro, Mr.
Martin, and Mr. Pipes at the earliest opportunity, for
all the reasons (including qualified immunity) urged
in the Defendants’ motion to dismiss. However, the
Plaintiffs’ request appears to be procedurally defective
33 Medgraph, Inc. v. Medtronic, Inc., 310 F.R.D. 208, 210 (W.D.N.Y. 2015) (“Absent an
underlying, predicate motion, there is no basis for relief under Rule 62.1.”). See Fischer
S.A. Comercio, Industria & Agricultura v. United States, 36 C.I.T. 371, 371 (2012) (denying
motion for indicative ruling under the analogous Rule 62.1 of the Rules of the United States
Court of International Trade where the plaintiff failed to file a predicate motion on which
the court could have indicated how it would rule).
34 Doc. 146.
and an improper and disruptive attempt to influence a
pending appeal.*
This Court sees no reason why Plaintiffs will not ultimately be allowed to
voluntarily dismiss certain claims against Defendants. Based on Defendants’
representation in their briefing, it does not appear that they would oppose such
a request—nor would it make sense to do so.
As it stands, this Court recognizes that it lacks jurisdiction to alter
claims that are pending on appeal. The Court’s denial of absolute immunity in
one respect left pending—in a narrowed form—Plaintiffs’ claims seeking
monetary damages from Cannizzaro, Pipes, and Martin in their individual
capacities to the extent they failed to supervise their subordinates and failed
to intervene in the alleged creation and use of “subpoenas.”
It is unclear both to the parties and to this Court exactly which aspects
of the Court’s February 28, 2019 Order and Reasons are before the Fifth
Circuit. There is no doubt, however, that the Court’s denial of absolute
immunity in some respects is on appeal. Accordingly, this Court currently lacks
the power to alter the claims that Plaintiffs ultimately want to dismiss.
CONCLUSION
For the foregoing reasons, the Motions are DENIED.
New Orleans, Louisiana this 2nd day of July, 2019.
g TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
35 Doc. 143 at 2.
10