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Case 2:07-cv-02513-GMS Document 1989 Filed 03/28/17 Page 3 of 6
1 Pursuant to the Courts order (Doc. 1923), Plaintiffs hereby state their position on
2 whether the Court retains jurisdiction over the pending motions for recusal and related
3 discovery (Docs. 1878, 1884).
4 As noted by the Court, Joseph Arpaio, Gerard Sheridan, and Joseph Sousa (the non-
5 party civil contemnors) now argue on appeal that this Courts contempt-related orders
6 should be vacated and that this Court and its Monitor should be recused from further
7 proceedings for the same reasons set forth in the pending motions. See Appellants Opening
8 Br., No. 16-16663 (9th Cir. Dec. 27, 2016) (Doc. 11).
9 Plaintiffs intend to demonstrate in due course in future briefing before this Court and
10 the Ninth Circuit that the non-party civil contemnors lack standing to seek the recusal of the
11 Court and its Monitor and to appeal the Courts contempt-related judgments. However,
12 during the pendency of an appeal, the district court is generally divested of jurisdiction over
13 those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount
14 Co., 459 U.S. 56, 58 (1982). Since the non-party civil contemnors have now raised the
15 recusal issues on appeal, it appears that this Court no longer has jurisdiction over the pending
16 motions for recusal and related discovery.
17 Nevertheless, Plaintiffs note that this Court has the authority to issue an indicative
18 ruling on the pending motions, pursuant to Federal Rule of Civil Procedure 62.1. Pursuant to
19 Rule 62.1, the Court may defer, deny, or indicate that it would grant a motion or that the
20 motion raises a substantial issue even when ruling on such a motion would be barred by a
21 pending appeal. In this case, such an indicative ruling could reach issues including whether
22 the motions are timely and whether the non-party civil contemnors have standing to proceed
23 on these issues. 1
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25 Plaintiffs do not waive any previous or future arguments as to the timeliness of the non-
party civil contemnors motions or their standing to seek the requested relief before this
26 Court or on appeal. Rather, Plaintiffs believe that the Ninth Circuit would benefit from an
indicative ruling from this Court on the issues of timeliness and standingeither of which
27 would be sufficient to deny the non-party civil contemnors requested relief both before this
Court and at the Ninth Circuit.
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1 While Rule 62.1 on its face applies when a timely motion is made and, as Plaintiffs
2 have argued, the pending motions before the Court are extremely untimely (see Docs. 1912,
3 1913), courts have exercised their discretion under Rule 62.1 to issue indicative rulings that
4 address both the timeliness and merits of a motion in light of a pending appeal. See, e.g.,
5 United States v. Peterson, 2013 WL 1830217, at *2-5 (S.D.N.Y. May 1, 2013) (exercising
6 discretion under Rule 62.1 to deny [a] Rule 60(b) motion because it is untimely and
7 meritless); Baker v. Douglas, 2010 WL 4386476, at *3-6 (M.D. Penn. Oct. 29, 2010)
8 (same). District courts have also frequently addressed motions for disqualification and
9 recusal in the context of pending appeals pursuant to Rule 62.1. See, e.g., Pierce v. Smith,
10 2016 WL 740321 (E.D. Cal. Feb. 25, 2016); Morris v. Kesselring, 2012 WL 278727 (M.D.
11 Penn. Jan. 31, 2012); Curves, LLC v. Spalding County, GA, 2011 WL 925564 (N.D.G.A.
12 Feb. 18, 2011). The Court may therefore issue an indicative ruling under Rule 62.1 on the
13 pending motions.
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Case 2:07-cv-02513-GMS Document 1989 Filed 03/28/17 Page 6 of 6
1 CERTIFICATE OF SERVICE
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I hereby certify that on March 28, 2017, I electronically transmitted the attached
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document to the Clerks office using the CM/ECF System for filing. Notice of this filing will be
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sent by e-mail to all parties by operation of the Courts electronic filing system or by mail as
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indicated on the Notice of Electronic Filing.
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Dated this 28th day of March, 2017.
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