United States District Court, D. Montana, Billings Division
ESTATE OF RICHARD DAVID RAMIREZ, by and through Personal Representative Julio Ramirez; RICHARD JORDAN RAMIREZ, by and through Conservator Julio Ramirez; and JULIO RAMIREZ; Plaintiffs,
CITY OF BILLINGS, a municipal corporation of the State of Montana; OFFICER GRANT MORRISON; CHIEF RICH ST. JOHN; JOHN DOES 1-10; and CORPORATIONS A-J; Defendants.
W. MOLLOY, DISTRICT JUDGE
case concerns the fatal shooting of Richard Ramirez by
Officer Grant Morrison. Plaintiffs sued under state law and
42 U.S.C. § 1983, alleging the shooting was an excessive
use of force in violation of the Fourth and Fourteenth
Amendments. Defendants Morrison, the City of Billings, and
Chief St. John sought summary judgment on all claims. (Docs.
21, 45.) Morrison argued he was entitled to qualified
immunity on the § 1983 claim because his use of force
was constitutional, and, in any event, he did not violate
clearly established law. On January 30, 2019, the Court
denied Morrison's motion for summary judgment that his
use of force was constitutional because of genuine disputes
of material fact. (Doc. 93.) The Court reserved ruling,
pending factual findings at trial, on whether Morrison
violated clearly established law.
(Id.) On February 1, 2019, Morrison filed a
notice of appeal. (Doc. 96.) On February 3, 2019, Plaintiffs
moved to certify the appeal as frivolous. (Doc. 97.) On
February 7, 2019, the City and St. John moved for a stay
pending the appeal. (Doc. 105.)
district court's denial of qualified immunity is the
proper subject of an interlocutory appeal. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). However, the review
is limited to purely legal questions. Johnson v.
Jones, 515 U.S. 304, 319-20 (1995). The Court of Appeals
does not have jurisdiction to review factual questions, such
as whether genuine disputes of material fact exist, on
interlocutory appeal. George v. Morris, 736 F.3d
829, 834 (9th Cir. 2013).
the filing of a notice of appeal divests a district court of
jurisdiction. See Rodriguez v. Cty. of L.A., 891
F.3d 776, 790 (9th Cir. 2018). However, the Ninth Circuit has
recognized "that the appeals process might be abused to
run up an adversary's costs or to delay trial."
Id. at 791 (citing Chuman v. Wright, 960
F.2d 104, 105 (9th Cir. 1992)). In such cases, a district
court may retain jurisdiction and proceed to trial by
certifying in writing that the appeal is frivolous or has
been waived. Chuman, 960 F.2d at 105. An appeal is
frivolous when it "is unfounded, 'so baseless that
it does not invoke appellate jurisdiction.'"
Marks v. Clarke, 102 F.3d 1012, 1017 n.8 (9th Cir.
1996) (quoting Apostol v. Gallion, 870 F.2d 1335,
1339 (7th Cir. 1989)).
Morrison appeals the portion of this Court's Order that
reserves ruling, pending factual findings at trial, on
whether his use of force violated clearly established law.
(Doc. 96.) As explained more fully in the Order, (Doc. 93),
factual issues must be resolved before it is possible to make
a legal ruling on the clearly established law prong of the
qualified immunity analysis. The Court, then, has yet to make
a legal determination that would be the proper subject of an
opposition to Plaintiffs' motion, Morrison conflates a
factual determination with a legal determination. When a
genuine dispute of material fact precludes qualified
immunity, as here, the jury must make factual findings
before the court can make a legal ruling. Morrison
attempts to avoid the jury by asking the Ninth Circuit to
become a factfinder in contravention of both the limits on
the Ninth Circuit's jurisdiction and Plaintiffs'
right to a jury trial. Because Morrison appeals a purely
factual determination over which the Court of Appeals does
not have jurisdiction, his appeal is meritless. Rather than
an interlocutory appeal, the proper course of action is for
Morrison to make a Rule 50 motion for judgment as a matter of
law at trial and, if a jury finds against him, to then
exercise his right to appeal.
the parties have already completed discovery, engaged in a
burdensome motions practice at summary judgment, and fully
briefed seven motions in limine and a motion to bifurcate. At
this stage, rather than promote the efficient resolution of
this case, the appeal serves only to disrupt and delay the
trial schedule. This is precisely what the Ninth Circuit
aimed to prevent in allowing district courts to certify
interlocutory appeals as frivolous. See Chuman, 960
F.2d at 105. Accordingly, IT IS ORDERED that Plaintiffs'
Joint Motion to Certify Officer Morrison's Appeal as
Frivolous and for Retention of Jurisdiction (Doc. 97) is
GRANTED. Officer Morrison's appeal is certified as
frivolous. This case will proceed according to the
August 11, 2017 Scheduling Order. (Doc. 17.)
FURTHER ORDERED that the City and St. John's Motion to
Stay Proceedings Pending Appeal (Doc. 105) is DENIED as MOOT.
 The Court also granted the City and
St. John's motion for summary judgment on the § 1983
claim but denied their motion on the state law claims. (Doc.
 The "frivolous"
certification in no way suggests a lack of professionalism on
the part of defense counsel.
 The parties are reminded of the
February 13, 2019 deadline for pretrial ...