The opinion of the court was delivered by: DEBORAH ROBINSON, Magistrate Judge
By an Order filed on January 23, 2004, the trial court denied the
Motion for Protective Order and to Shorten Time or to Certify Issues for
Immediate Appeal (Docket No. 660). January 23, 2004 Order (Docket No.
679) filed by Defendant Islamic Republic of Iran ("Iran"). On February
20, 2004, Defendant Iran filed a Notice of Appeal from the trial court's
January 23, 2004 Order. Notice of Appeal (Docket No. 695). Defendant Iran
now "moves for an order confirming the automatic stay of further
proceedings in this Court resulting from the appeal noted from the
Court's Order of January 24, 2004 [sic]." Motion to Confirm Automatic
Stay (Docket No. 693).*fn1 In the memorandum in support of its motion,
Iran submits that "[a]ll `aspects' of this case are placed in issue by
this appeal[,]" and that the appeal "is clearly a proper `collateral
order' appeal[.]" Memorandum in Support of Motion to Confirm Automatic
Stay ("Defendant Iran's Memorandum") at 2, 3. Plaintiffs, in their opposition, maintain that Defendant Iran's Motion
to Confirm Automatic Stay is without merit. More specifically, Plaintiffs
submit that the order from which Iran took an appeal is not an appealable
order, and that a notice of appeal of an "unappealable" order does not
divest the district court of jurisdiction. McKesson Plaintiffs'
Memorandum in Opposition to Iran's Motion to Confirm Automatic Stay
("Plaintiffs' Opposition") (Docket No. 698) at 7 [unnumbered].
Additionally, Plaintiffs submit that the January 23, 2003 Order denying
Defendant Iran's motion for a stay of discovery is not a collateral order
subject to interlocutory appeal. Id. at 10-15 [unnumbered].
Defendant Iran, in its reply, states that it does not contest the first
argument advanced by Plaintiffs, i.e., that a notice of appeal from an
unappealable order does not divest a district court of jurisdiction.
Reply to Opposition to Motion to Confirm Automatic Stay ("Defendant
Iran's Reply") (Docket No. 702) at 1. With no citation of direct
authority, Defendant Iran submits that "in this Circuit the decision
whether this Court may proceed is reserved to the court of appeals, so
the case is automatically stayed until the Circuit Court acts." Id. at
Counsel for Plaintiffs and for Defendant Iran appeared before the
undersigned on March 30, 2004 for oral argument with respect to Defendant
Iran's Motion to Confirm Automatic Stay. Defendant Iran conceded that the
term "automatic stay" is a misnomer. In response to the undersigned's
question regarding the effect of the order of the trial court denying
Defendant Iran's motion to certify issues for immediate appeal (Docket
No. 660), Defendant Iran's counsel said that the order "is not relevant
to anything." Plaintiffs principally maintained that the order from which
Defendant Iran appealed is not an appealable order, and that Iran's
filing of the notice of appeal does not divest this court of
jurisdiction. Plaintiffs relied upon the decision of this circuit in United States v. Defries, 129 F.3d 1293 (D.C. Cir.
1997), and the other authorities cited in their written opposition.
Upon consideration of Defendant Iran's Motion to Confirm Automatic
Stay; the memoranda in support thereof and in opposition thereto; the
oral arguments of counsel and the relevant record herein, Defendant
Iran's Motion to Confirm Automatic Stay will be denied. First, the
undersigned finds, as Defendant Iran readily concedes, that the term,
"automatic stay" is a misnomer. Since an "automatic stay" is but a
construct upon which Defendant Iran's motion is predicated, the
undersigned cannot "confirm" it.
Second, the undersigned finds that the order which was the subject of
Defendant Iran's notice of appeal is not an appealable order.*fn2 The
United States Code provides for appeals to the courts of appeals of only
two categories of decisions: "final decisions," and "interlocutory
decisions." Section 1291 of Title 28 of the United States Code provides
for the appeal of "all final decisions" of the district courts.
28 U.S.C. § 1291. Defendant Iran does not suggest that the order which
was the subject of its notice of appeal is a "final [decision] [.]"
Two provisions of Section 1292 govern interlocutory decisions. The
first is limited to orders with respect to injunctions, receiverships and
admiralty cases, and plainly is inapplicable here. 28 U.S.C. § 1292(a).
The second provision of Section 1292 allows a district court to "state in
writing" that "an order not otherwise appealable under this section . . .
involves a controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation[.]" 28 U.S.C. § 1292(b).
However, the assigned district judge has already denied Defendant Iran's
motion to certify issues for immediate appeal. January 23, 2004 Order
(Docket No. 679).
It is settled that a notice of appeal from an unappealable order does
not divest the district court of jurisdiction. Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982) (citing Ruby v. Secretary
of United States Navy, 365 F.2d 385, 389 (9th Cir. 1966) (en banc):
DeFries, 129 F.3d at 1301-1302 (citation omitted) (noting exception to
the general rule that the district court is divested of jurisdiction
until the court of appeals issues its mandate where it is "an
interlocutory appeal from a non-appealable order."); Sheet Metal Workers'
International Association Local 19 v. Herre Bros., Inc., 198 F.3d 391,
394 (3d Cir. 1999) (citation omitted) ("notice of appeal from an
unappealable order does not deprive the district court of
jurisdiction."); Conners v. O' Connor, 6 F.3d 656, 658 (9th Cir. 1993)
(citation omitted) ("The transfer of jurisdiction from the district court
to the court of appeals is not effected, however, if a litigant files a
notice of appeal from an unappealable order."); United States v. 397.51
Acres of Land, 692 F.2d 688, 693 (10th Cir. 1982) (citation omitted)
("The filing of a notice of appeal divests the district court of
jurisdiction with two recognized exceptions: (1) untimeliness of the
notice, and (2) dependence on an unappealable order."). Defendant Iran's
motion therefore must be denied on this additional ground. CONCLUSION
It is, therefore, this 7th day of April, 2004,
ORDERED that Defendant's Motion to Confirm Automatic Stay (Docket No.
693) is DENIED; and it is
FURTHER ORDERED that Defendant's Contingent Motion for Extension of
Time (Docket No. 704) is GRANTED IN PART, and that Defendant Iran shall
file its replies to Plaintiffs' oppositions to Defendant's Motion to
Compel Discovery Responses (Docket No. 682) and Defendant's Motion to