[00:00:04] Speaker 05: Well, good morning and welcome to the Ninth Circuit. [00:00:08] Speaker 05: My colleague Judge Graber and I would like to welcome and thank Judge Toonheim from Minnesota. [00:00:13] Speaker 05: It would be very difficult for us on the Ninth Circuit to do our job without judges like Judge Toonheim. [00:00:21] Speaker 05: So we have submitted a number of cases today. [00:00:27] Speaker 05: Martinez-Santiago versus Bondi, Larez-Delarosa versus United States, Hypes v. [00:00:34] Speaker 05: United States and Barlow versus town of Colorado City have all been submitted. [00:00:41] Speaker 05: We have one case on the argument calendar. [00:00:45] Speaker 05: It is my understanding that appellees are splitting their time with Mr. Cohn going first as an appellee for 10 minutes and then Mr. Mudd for 5 minutes. [00:00:55] Speaker 05: Is that right? [00:00:57] Speaker 05: All right. [00:00:57] Speaker 05: And we're going to put separate time on the clocks for both of you. [00:01:02] Speaker 05: Mr. Cohn, you will see 10 minutes and when that's exhausted, you're done. [00:01:07] Speaker 05: And Mr. Mudd will have 5 minutes. [00:01:13] Speaker 05: All right. [00:01:15] Speaker 05: So, Mr. Summers, whenever you're ready. [00:01:25] Speaker 03: Good morning, Honours. [00:01:26] Speaker 03: May it please the Court. [00:01:26] Speaker 03: My name is Rob Summers. [00:01:27] Speaker 03: I represent the appellants in this matter, Zakia Jacqueline Rajavian and Dulceria Lavagnuda Wholesale. [00:01:34] Speaker 03: I'd like to first address the issue presented by the Court, which was regarding the December 19, 2023 order. [00:01:41] Speaker 03: And the Court asked whether the order was a final order, I guess, for the purposes of a notice of appeal. [00:01:52] Speaker 03: And the court asked us to look at Ingram versus ACNS, Inc. [00:01:56] Speaker 03: 977, Fed 2nd, 1332, Ninth Circuit, 1992, for its holding that a minute order may constitute a dispositive order for notice of appeal purposes if it states that it is an order, is mailed to counsel, is signed by the clerk that prepared it, and is entered on the docket sheet. [00:02:12] Speaker 03: An excerpt of Record 797 shows the text of the minute entry, which states, [00:02:18] Speaker 03: quote, it is ordered staying the case on all claims pending the outcome of the state court litigation, end quote. [00:02:23] Speaker 03: I do not think the court doubts that the December 1923 order is an appealable order. [00:02:29] Speaker 03: jurisdiction for this appeals pursuant to 28 USC 1291, which states that the Court of Appeals has jurisdiction of appeals from all final decisions of the district course the United States and the Colorado River doctrine cases are reviewed as final decisions under 28 USC section 1291. [00:02:48] Speaker 03: Federal rule of Civil Procedure 54A defines a judgment as [00:02:56] Speaker 03: as used in these rules includes a decree on any order from which an appeal lies. [00:03:01] Speaker 03: The question then is whether the stay order pursuant to the Colorado River Doctrine is not considered entered unless it meets the requirements under Rule 58, Federal Rules of Civil Procedure for entry of a judgment. [00:03:15] Speaker 03: The Ingram case states that page 1336, a judgment order is, quote, entered [00:03:23] Speaker 03: within the meaning of Rule 4A, quote, when it is entered in compliance with Rules 58 and 79A of the Federal Rules of Civil Procedure. [00:03:30] Speaker 03: And they're citing the Federal Rule of Appellate Procedure, 4A7. [00:03:34] Speaker 03: Rule 58 requires that every judgment be set out on a separate document. [00:03:39] Speaker 03: And Rule 79 details a civil docking procedure to be followed by the district court when entering a judgment. [00:03:44] Speaker 03: So in this case, the December order is not considered entered [00:03:49] Speaker 03: until the earlier of two events occurs. [00:03:52] Speaker 03: It is set out as a separate document or 150 days of run from the entry of that order in the civil docket. [00:03:59] Speaker 03: And that's pursuant to Rule 58C2A and B, and that same requirement is in Rule 4A7A2 of the Federal Rules of Appellate Procedure, which states a judgment order is entered for purposes of this Rule 4A. [00:04:12] Speaker 03: If Federal Rule of Civil Procedure 58A requires a separate document, [00:04:17] Speaker 03: when the judgment order is entered in the civil docket and the earlier of two events occurs. [00:04:22] Speaker 03: The judgment order enters a separate document or 150 days of run from the entry of judgment or order in the civil docket. [00:04:29] Speaker 03: So the fact that the stay order is an appealable final decision means it meets the definition of a judgment and thus it means it has to be set out as a separate document in order to be considered entered or else it is considered entered 150 days from the entry on the docket. [00:04:45] Speaker 03: So if the court is questioning whether the December 19, 2023 minute entry is a separate document, it clearly is not. [00:04:52] Speaker 00: Because of the provision for a settlement conference? [00:04:57] Speaker 03: No, Your Honor. [00:04:58] Speaker 03: The December 19, 2023 minute entry ends by stating, this is a text entry only. [00:05:04] Speaker 03: There is no PDF document associated with this entry. [00:05:09] Speaker 00: What does that mean in plain English? [00:05:13] Speaker 00: I'm very non-techy. [00:05:16] Speaker 00: So it's text and it's entered. [00:05:20] Speaker 00: So why does there have to be a PDF document? [00:05:25] Speaker 03: Well, the rule says it has to be entered as a separate document. [00:05:28] Speaker 00: Well, why isn't the minute entry text, which is documented, a text entry, an entry? [00:05:37] Speaker 00: It's confusing to me. [00:05:40] Speaker 03: Well, because the document itself says there is no document associated with this entry. [00:05:46] Speaker 05: If I'm understanding Judge Graber's question correctly, when I look at ER 797, it looks to me like a document. [00:06:00] Speaker 05: It looks to me like it's separate, and it looks to me like it's entered. [00:06:07] Speaker 05: So I think I'm missing what your point is, because 797 looks to me like [00:06:16] Speaker 05: It satisfies what the court talked about in Ingram. [00:06:21] Speaker 00: I mean, it's titled Notice of Electronic Filing, so it appears that the court intended to file it. [00:06:32] Speaker 00: And as you've acknowledged, it is an order. [00:06:36] Speaker 03: Put it more simply, why isn't it a document? [00:06:39] Speaker 03: Because right in the text of the document, it says document number 79, [00:06:43] Speaker 03: quote, no document attached. [00:06:47] Speaker 03: That means this is not a document. [00:06:49] Speaker 03: This is a docket text. [00:06:52] Speaker 03: It is a minute entry that says that this is a text entry only. [00:06:57] Speaker 00: So your position is there have to be two documents. [00:07:01] Speaker 00: There has to be the electronically filed and emailed document, and there has to be a separate attached document that presumably is identical. [00:07:12] Speaker 00: I don't understand that. [00:07:13] Speaker 03: Well, Your Honor, it would not be identical, because if there was a document attached, it would presumably contain the contents of the rest of the order, like the reasoning behind the order, the parties involved. [00:07:23] Speaker 00: That's not required for finality. [00:07:25] Speaker 03: Well, Your Honor, I can only interpret the rules. [00:07:28] Speaker 00: Well, no, I see your position that there has to be reasoning for it to be a final order, or can it just be the order or judgment? [00:07:37] Speaker 00: Typically, at the end, there isn't the reasoning. [00:07:39] Speaker 00: That's contained somewhere else. [00:07:43] Speaker 03: Well, if we look at Ingram once again at page 1339, it says, in the context of Federal Rules of Civil Procedure 58's separate entry requirement, Rule 58 was, quote, intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court, only to have the appellate court announce later that an earlier document or entry had been the judgment and dismissed appeals untimely. [00:08:08] Speaker 03: So in your view, would it count if [00:08:13] Speaker 05: Other than saying there is no PDF document associated with this entry, if this exact same content was as the next docket entry filed and it said nothing different than this, would that qualify? [00:08:33] Speaker 03: Well, Your Honor, you know, I can only read what the court puts out in its electronic filings. [00:08:38] Speaker 03: And when the rule says there must be a separate document [00:08:43] Speaker 03: There's no way for a separate document to exist unless there's an entry such as this one that then attaches a separate document. [00:08:51] Speaker 03: That's why it says next to the document number, no document attached. [00:08:55] Speaker 00: That seems contrary to our decision in the ink room because minute orders typically are docketed like this without being a whole series. [00:09:07] Speaker 00: They're set out with a separate docketing number. [00:09:13] Speaker 00: So that would kind of undo our case law saying that the minute entry can count. [00:09:19] Speaker 03: Well, Your Honor, we're not saying it doesn't count as an order. [00:09:22] Speaker 03: We're acknowledging that it's an order. [00:09:24] Speaker 03: What we're saying is that it's a judgment that has not been set out as a separate document. [00:09:30] Speaker 03: And therefore it is not considered entered yet. [00:09:33] Speaker 03: Otherwise, every text entry would be [00:09:37] Speaker 03: a document. [00:09:40] Speaker 00: What does the term entry mean then? [00:09:42] Speaker 00: This is a text entry. [00:09:45] Speaker 00: If it's not entered, why is it called an entry? [00:09:48] Speaker 03: Because there's a difference between entry and entered. [00:09:50] Speaker 03: The Rule 58 says that the document in Rule 79, it says that the document is entered into the docket. [00:09:59] Speaker 03: That is the entry into the docket. [00:10:01] Speaker 00: This is a docket. [00:10:04] Speaker 00: This is a docketed [00:10:05] Speaker 00: entry number seventy-nine it's a document entry i want to ask you one other question at with the are earlier case talked about mailing in the old-fashioned sense and this uh... was electronically mailed it's the are you making any argument that that in and of itself as a problem well you know i don't think there's any question was received okay so i just emailing and receive our fire [00:10:32] Speaker 03: I just don't know how the rule could possibly be interpreted to say that entry is different from entered because Rule 4 and Rule 58 both use this terminology to say that a separate document must be filed if something is a judgment. [00:10:49] Speaker 03: If this was not a judgment, then this would simply be an order. [00:10:52] Speaker 03: But because it's a dispositive order that is an appealable order, then it qualifies as a judgment [00:10:58] Speaker 03: And because it's now a judgment, it must be entered as a separate document for it to be considered entered. [00:11:04] Speaker 03: Otherwise, it's considered entered 150 days later. [00:11:07] Speaker 03: And that's only for notices of appeal purposes, not for enforceability. [00:11:11] Speaker 02: If the minute entry or the minute order, which is the subject of this, if that minute order had gone on to say, this is a final judgment and this is appealable, [00:11:26] Speaker 02: But it's still part of a minute entry and not a separate document. [00:11:30] Speaker 02: Would that be a final document for an appeal? [00:11:34] Speaker 03: It would not be a separate document. [00:11:35] Speaker 03: It would be a final document. [00:11:36] Speaker 02: So if it's not a separate document, then it wouldn't be appealable under your theory, right? [00:11:42] Speaker 03: For 150 days. [00:11:43] Speaker 03: For 150 days, it would not be considered entered. [00:11:50] Speaker 03: The purposes of a notice of appeal. [00:11:52] Speaker 03: I mean otherwise why after the document number 79 would they have in parentheses no document attached if this was in fact the document? [00:11:59] Speaker 00: So that the people who receive it know not to be looking for something else. [00:12:03] Speaker 00: It's informative but I don't understand that it has legal force. [00:12:08] Speaker 03: Well I'm sure the entry for the November 22, 2023 order said document attached and that order would have been considered entered at the time that it was entered into the [00:12:19] Speaker 03: docked it because it had a separate document attached that was an order. [00:12:24] Speaker 03: So I think the purpose for the rule is to say that orders that simply are entered as text entries are not considered entered because there's not a separate document for 150 days and that's because of the policy in Ingram which was citing to Bankers Trust versus Malice, a Supreme Court case. [00:12:41] Speaker 00: Well, leaving aside policy, if this had attached a PDF document that was identical to the minute entry, [00:12:49] Speaker 00: It just was redundant. [00:12:52] Speaker 00: Would that do? [00:12:53] Speaker 03: That's correct, Your Honor, because it would have said order attached. [00:12:56] Speaker 00: It would have said docking attached. [00:12:57] Speaker 00: And you really think that that should make a difference? [00:13:02] Speaker 03: Well, Your Honor, all we can do is interpret the rules as they're written. [00:13:05] Speaker 03: I mean, if we're just talking about policy or equity, then I think when we file a notice of appeal within that 150 days, [00:13:15] Speaker 03: as stated in Ingram, citing the banker's trust, the entire purpose of that separate entry requirement is to not have a gotcha game where you file a notice of appeal and the court says, well, wait, there was an earlier order that actually should have started running your clock, you're too late, and now you're out of luck. [00:13:31] Speaker 05: So counsel, we've taken up a lot of your time with questions. [00:13:34] Speaker 05: You don't have a lot of time left, but did you want to move to the merits? [00:13:38] Speaker 03: Well, Your Honor, I'm not sure what else the court really wanted to hear from us in terms of the [00:13:44] Speaker 03: Merits, obviously, I think the pleadings go into quite a bit of detail as to why the abstention was not properly applied in this case. [00:13:52] Speaker 03: There's clearly some of the factors six and eight under the test set out in our street versus transportation insurance company, which is whether the state court can protect the rights of the parties and whether the state court will resolve all of the issues before the federal court. [00:14:11] Speaker 03: It's clearly not met in this case because there's a lack of parallelism. [00:14:15] Speaker 03: The federal case and the state court case are simply not parallel. [00:14:18] Speaker 03: They're not even remotely similar. [00:14:19] Speaker 03: There's two parties involved in both cases with one common claim for invasion of privacy. [00:14:26] Speaker 03: And I will quote you from Ernest Bach, LLC versus Steelman, 2023 Westlaw, 494-0428 at page nine, Ninth Circuit, August 3rd, 2023. [00:14:40] Speaker 03: It would be inappropriate to maintain the state in this case quote if there is any substantial doubt as to whether the parallel state court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties a Colorado River stay necessarily contemplates that the federal court will have nothing further to do. [00:14:57] Speaker 03: in resolving any substantive part of the case. [00:15:00] Speaker 03: When one possible outcome of the parallel state court proceedings is continued federal litigation, we find a substantial doubt that the state court action will provide a complete and prompt resolution of the issues because the federal court may well have something further to do. [00:15:14] Speaker 03: In this case, the court clearly understood when it was putting the stay in place that it was just waiting for apparently one or two claims to be resolved in the state court action, understanding that we had to come back to federal court [00:15:27] Speaker 03: to litigate the claims against Mercedes, the claims against Lionheart security, Gerald Shibley, Jeff Nowak, Vern Fouts, and Gus Gonzalez. [00:15:37] Speaker 03: None of those parties are parties in the state court action. [00:15:40] Speaker 03: They're claiming that they can somehow use some findings in the state court claim as defensively as a stoppile, but they don't similarly acknowledge that if we were to win on those claims in state court, [00:15:50] Speaker 03: that they could somehow resolve all of the claims in the federal action. [00:15:54] Speaker 03: It's simply impossible. [00:15:55] Speaker 03: There's a breach of implied contract claim in the federal case that's simply not part of the state court case. [00:16:01] Speaker 03: Where are things now? [00:16:03] Speaker 03: Right now we are appealing a judgment for conversion in the state court case. [00:16:08] Speaker 03: The state court case has otherwise stayed pending the outcome of that claim. [00:16:12] Speaker 03: So all of our counterclaims in the state court case are currently not being processed. [00:16:16] Speaker 05: So there's an interlocutory appeal? [00:16:18] Speaker 03: It is a rule 54B judgment. [00:16:21] Speaker 03: Yes, Your Honor. [00:16:22] Speaker 05: All right. [00:16:22] Speaker 05: So we will give you some time for a rebuttal. [00:16:25] Speaker 03: Thank you, Your Honor. [00:16:44] Speaker 01: Good morning, Your Honor. [00:16:44] Speaker 01: My name is Larry Cohen. [00:16:46] Speaker 01: I'm counsel for Phoenix Motor Company. [00:16:48] Speaker 01: Thank you for the opportunity to address you today. [00:16:51] Speaker 01: With regard to the status of the proceedings in the state court, Your Honor, your last question, we are up on appeal now on the central issue, frankly, in both cases, which is, well, we're up on a conversion claim, but within the conversion claim, the issue was addressed, who owns this vehicle? [00:17:09] Speaker 01: That's been the central issue in the state case, and it was attempted to be the central issue in the federal case. [00:17:16] Speaker 01: That's now up on appeal. [00:17:17] Speaker 01: By stipulation, everything has stayed in the state court while that's proceeding. [00:17:24] Speaker 05: Presumably, the state court is going to decide who the true owner was. [00:17:29] Speaker 05: Excuse me, Your Honor. [00:17:30] Speaker 05: Presumably, the state court is going to decide who the true owner was. [00:17:34] Speaker 01: Well, the trial court made that determination. [00:17:38] Speaker 01: And so the appellate court will have to address that because [00:17:43] Speaker 01: ownership of the vehicle right to immediate possession is an element of the conversion claim, and so presumably the appellate court will address that issue. [00:17:52] Speaker 01: So that's the status of the state court proceeding. [00:17:55] Speaker 01: We could be doing more. [00:17:57] Speaker 01: There could be further things going on, but the Syria party, which in that case is a defendant, has chosen to agree to a stipulation to say that proceeding, and that's where we are. [00:18:10] Speaker 01: As far as jurisdiction is concerned, Your Honor, [00:18:12] Speaker 01: I have a number of points I wanted to make about jurisdiction. [00:18:14] Speaker 01: I can talk further about the issue raised by the court, but I think your questions covered it. [00:18:19] Speaker 01: But very briefly, it's our view that per Ingram, the docket number 79, the text entry, is in fact a separate document and does constitute an appealable order. [00:18:33] Speaker 01: We also have the rulings in the Moses and Quackenbush cases, which say that in the abstention context, when a stay is imposed, it becomes appealable because [00:18:42] Speaker 01: parties are out of court, out of federal court. [00:18:45] Speaker 01: And so either way, it's an appealable order from which they could have and should have gone forward. [00:18:53] Speaker 01: And not going forward has had consequences for them. [00:18:56] Speaker 01: And this is addressed both in the Moses and Quackenbush case. [00:19:00] Speaker 01: They had the option at that point of filing an appeal. [00:19:03] Speaker 01: And being in this court, that's what we could be talking about today. [00:19:06] Speaker 01: But they chose not to. [00:19:07] Speaker 01: And again, just as a reminder, Your Honor, if the court looks at the [00:19:11] Speaker 01: The statement of the case that they prepared, they indicate that what they're appealing from is not the December 19 minute order. [00:19:22] Speaker 01: They're appealing from the April 13 order for the lift stay. [00:19:26] Speaker 01: So the stay itself is not part of this appeal. [00:19:30] Speaker 01: uh... in terms of what they have appealed more could it be because in our view the time for appeal ran and they didn't timely appeal it but by not appealing it they've had a further consequence that affects the jurisdiction of this court which is that that certain questions specifically the federal questions through which they had their book into the federal uh... jurisdiction were ruled upon by the state court on their merits and so [00:19:56] Speaker 01: to take a step back, how do they get to federal court with this largely state court action? [00:20:00] Speaker 01: They do it by alleging a violation of the wiretap statute. [00:20:07] Speaker 01: And so presumably that then gives this court jurisdiction because it doesn't have diversity jurisdiction. [00:20:13] Speaker 01: Well, by agreeing to go back to the state court, that issue of the viability of that claim was addressed in the state court and the state court ruled [00:20:24] Speaker 01: that there was a failure to state a claim. [00:20:26] Speaker 01: It had to do with the fact that their allegations were based upon the geophysical location aspect of the effort to find the vehicle. [00:20:36] Speaker 01: And that's the hook on which they say that the Wiretap Act was violated. [00:20:41] Speaker 01: Well, the state court would consider that under Rule 12b6 and made a ruling that there was no action stated [00:20:54] Speaker 01: For purposes of that statute, because geophysical location is not a a part of the statute that is subject to a civil civil action. [00:21:04] Speaker 01: So they lost that they also. [00:21:08] Speaker 01: Pursued in the state court, another federal court action restored Communications Act and the court found that that too did not state a claim for relief under 12 B6. [00:21:19] Speaker 01: So where are we now? [00:21:20] Speaker 01: Well, we are now is that the. [00:21:23] Speaker 01: Means by which they get to federal court have federal court jurisdiction have been decided in the state court. [00:21:29] Speaker 01: The remedy is to then go through the appeal down there and through the state court and have that issue addressed. [00:21:35] Speaker 01: But that issue has now been decided and we contend that race judicata applies. [00:21:41] Speaker 05: And so the opportunity, but I mean, even if you're right that at some point race judicata would apply, the district court might still have supplemental jurisdiction over the remaining claims, right? [00:21:52] Speaker 05: All the remaining claims are state court claims. [00:21:54] Speaker 05: Yes, but that's what supplemental jurisdiction deals with, right? [00:21:59] Speaker 01: I appreciate that, Your Honor, but the opportunity for them to be in the federal court where the court can act on those supplemental claims is now gone. [00:22:09] Speaker 01: There's no federal basis for them to be there. [00:22:13] Speaker 05: So what you would end up having is a... There would be a federal basis. [00:22:17] Speaker 05: It just might not have any merit. [00:22:19] Speaker 01: Well, unless... [00:22:22] Speaker 05: The fact that somebody brings a claim that on its face states of federal cause of action gets you into federal court and the fact that you may not be able to succeed on the merits doesn't deprive the federal court of jurisdiction or the discretion to look at the state claims as part of supplemental jurisdiction although it would likely inform the district court's discretion. [00:22:52] Speaker 01: I understand what your honor is saying, and I'm not going to sit here and disagree with your honor. [00:22:57] Speaker 01: It just seems to me that once we get back to federal court, if this court allowed it to go there, we would file a motion to dismiss for a lack of federal jurisdiction at that point. [00:23:07] Speaker 01: And we'd be back with the argument that all these are state claims and they belong in the state court where they're already being prosecuted and already being pursued. [00:23:16] Speaker 01: That at least is a problem that they now have by virtue of not taking the appeal. [00:23:21] Speaker 02: Back to docket number 79 again, Mr. Cohen. [00:23:26] Speaker 02: You know, it says no document is attached. [00:23:29] Speaker 02: A stay is at least theoretically temporary. [00:23:35] Speaker 02: Why would someone believe that this is an order that can be appealed and if you don't appeal, you're going to lose your rights? [00:23:42] Speaker 01: Well, I think there are two reasons, Your Honor, and one is the Ingram case, which identifies when and under what circumstances a a minute entry order is an appealable order. [00:23:53] Speaker 01: And this text order, we believe, meets all the requirements for that as set forth by this coordinate in the question. [00:24:00] Speaker 01: It asks it's an order. [00:24:01] Speaker 01: It was mailed. [00:24:02] Speaker 01: It was signed by the clerk and it's entered on the document sheet. [00:24:05] Speaker 01: So all of those requirements have been met. [00:24:07] Speaker 01: So that should have put them on notice. [00:24:09] Speaker 01: But the Moses and Quackenbush case also put them on notice by saying that when you have in the abstention context, a stay that goes into effect, that it is then becomes appealable because you're now out of court. [00:24:24] Speaker 01: And so I think there were two ways in which they should have been aware of that and should have taken action. [00:24:29] Speaker 01: And again, they should have been mindful of the consequences that could follow of not doing this. [00:24:33] Speaker 00: Well, counsel, actually, as I understood, [00:24:37] Speaker 00: the argument that was made by Mr. Summers, I understood him to concede that it's dispositive and appealable in theory, this order, and that his complaint or his assertion is that it simply is not a separate enough document. [00:25:00] Speaker 00: So if you could address that specific question, [00:25:05] Speaker 00: where it says there is no PDF document associated with this entry. [00:25:12] Speaker 01: I think that statement, Your Honor, with respect to Mr. Summers, I think that statement is just informative. [00:25:17] Speaker 01: Not to go looking for another document is often the case when the court announces its orders that there's another document that one should go look at. [00:25:27] Speaker 01: But there is no separate document here, nor is one required. [00:25:30] Speaker 00: The rules require a separate document, but I gather that your position is that this document has its own number, 79. [00:25:41] Speaker 00: It's called document number. [00:25:45] Speaker 00: that it is a separate document. [00:25:48] Speaker 01: That's exactly what I was going to say, Your Honor. [00:25:51] Speaker 01: It's our position that the document 79 is, in fact, by itself a separate document for purpose of the applicable rules of procedure and that no other document is required. [00:26:01] Speaker 01: There's no separate document which lays out reasoning. [00:26:07] Speaker 01: There wasn't a need for one. [00:26:08] Speaker 01: The court had already done that in document 76. [00:26:11] Speaker 01: and set out what its reasoning was that supported the stay so that there was no separate document in part because there's no need for one under the circumstances. [00:26:19] Speaker 00: Well, actually, the rules say you're not supposed to put that in a judgment anyway. [00:26:23] Speaker 01: I'm sorry, Your Honor. [00:26:24] Speaker 00: As I read the rules, the final judgment is not supposed to contain things like, here are the 50 pages of reasons that I have. [00:26:35] Speaker 01: I agree, Your Honor. [00:26:37] Speaker 01: And there's a document stood by itself to have the effect of being an appealable order. [00:26:42] Speaker 01: And that's what we were dealing with here. [00:26:44] Speaker 01: I'm out of time. [00:26:45] Speaker 01: Thank you. [00:26:45] Speaker 01: Thank you, Your Honors very much. [00:27:00] Speaker 04: Good morning, Your Honors, and may it please the court. [00:27:02] Speaker 04: My name is Carl Mudd, and I represent Appellee Mercedes-Benz USA LLC. [00:27:08] Speaker 04: I want to start by just expressing our agreement that the December 19th in an order does constitute an appealable order for purposes of appeal under 29 or 29 1291. [00:27:23] Speaker 04: With respect to the separate document requirement, as Mr. Cohen set out, the document that was sent by the clerk to the parties can and should qualify as a separate document. [00:27:35] Speaker 04: that was sent via the court's electronic system, via electronic mail, and that's permitted under Rule 5, I believe it is, Your Honors. [00:27:45] Speaker 04: And to the extent a separate document is required, and to the extent that separate email does not constitute a separate document, the United States Supreme Court and this court have acknowledged that a separate document, that requirement may be waived if the minute order [00:28:04] Speaker 04: I apologize. [00:28:14] Speaker 00: Well, the opposing party certainly didn't waive it. [00:28:17] Speaker 00: Well, it's their argument. [00:28:20] Speaker 04: Well, by filing the motion to lift the stay, the appellants indicated their unambiguous belief that that minute order and that the court's initial stay was a final order. [00:28:29] Speaker 04: So they, they understood that this was a final order. [00:28:32] Speaker 04: They knew that it was an order. [00:28:33] Speaker 05: Although they're not quarreling with that. [00:28:35] Speaker 05: They're saying that under the rule, because as I understand it, because this isn't set out as a separate document, they have 150 days to, I mean, it becomes final in 150 days. [00:28:46] Speaker 05: So I don't think they're quarreling with at some point, this will be appealable. [00:28:50] Speaker 05: Their quarrel is it wasn't appealable immediately because of the separate document rule. [00:28:56] Speaker 04: And your honor, I just want to point out that the separate document, as Ingram made clear, can be necessarily satisfied through the minute and text order and the subsequent email. [00:29:11] Speaker 04: I simply want to point out to the court that it is possible for that separate document requirement to the extent those other things, those [00:29:17] Speaker 04: other documents did not satisfy the requirement can be waived through actions of the parties and through lack of objection. [00:29:24] Speaker 04: And that this is the expression of the appellants by filing their motion to lift stay acknowledges the fact that that final that the initial stay order should be considered a final order that had been entered in was appeal. [00:29:39] Speaker 04: That said, moving to the merits of this case. [00:29:44] Speaker 04: We agree that [00:29:47] Speaker 04: This is simply an attempt by the appellants to circumvent appellate and state court review. [00:29:54] Speaker 04: This case and the state case involve the same exact factual predicate and concern the same exact issue. [00:30:02] Speaker 04: This luxury motor vehicle and the attempts made to recover that motor vehicle. [00:30:07] Speaker 04: Everything in both actions flow from this single fact and all issues arise from that factual predicate. [00:30:15] Speaker 04: With respect to the [00:30:18] Speaker 04: The issue raised by appellants concerning the ability of the court to hear claims and the complete satisfaction of all claims raised. [00:30:28] Speaker 04: These are separate and distinct factors raised in the Colorado River Doctrine. [00:30:33] Speaker 04: The ability to address claims refers to the authority of the court to hear those claims. [00:30:38] Speaker 04: It does not mean that the court has to in fact hear them. [00:30:40] Speaker 04: The state court has concurrent jurisdiction over the wiretap claims and they can also hear every other claim that's been raised in the federal court. [00:30:47] Speaker 04: The fact that those claims were not raised in the state court is purely the result of appellant's litigation strategy. [00:30:55] Speaker 04: It does not mean that they could not have been raised or they shouldn't have been raised by them. [00:31:01] Speaker 04: With respect to the next element, whether the state court proceedings will resolve all matters raised in the federal proceeding. [00:31:12] Speaker 04: This factor can be satisfied despite the fact that there is different claims in different parties. [00:31:16] Speaker 04: It doesn't matter if the appellants were denied the attempt to bring these parties in. [00:31:22] Speaker 04: The focus of that factor is whether or not the resolution of the issues raised in the state court will resolve all matters raised in the federal court. [00:31:31] Speaker 04: We submit that that will occur. [00:31:33] Speaker 04: Once the state court has run its course, once it's gone through the appellate procedures, we'll have a final order, a final judgment with respect to the ownership of the vehicle. [00:31:46] Speaker 04: determination will flow towards several other claims that have been raised in the federal court, where claim conclusion and residue to caught a or residue caught in collateral estoppel very well may bring a total resolution to the thing to the federal action is reasonably probable that that will occur. [00:32:02] Speaker 04: And I'm out of time, your honors. [00:32:03] Speaker 04: Thank you very much. [00:32:04] Speaker 05: I thank you, counsel. [00:32:04] Speaker 05: We'll give you two minutes for rebuttal. [00:32:13] Speaker 03: Thank you, honor. [00:32:14] Speaker 03: I think I just like to point out that rule 58 says that it's a separate document, not a separate docket entry. [00:32:21] Speaker 03: And the rules simply know from rule 79 what differences between a docket entry and a document. [00:32:29] Speaker 03: As to the res judicata arguments I've been hearing, first of all, it is not a final order, as Mr. Cohen pointed out in the state court regarding the federal claim, and that claim [00:32:40] Speaker 03: could be appealed later. [00:32:42] Speaker 03: And therefore, there's no reason why the federal court couldn't currently be hearing that claim. [00:32:46] Speaker 03: If this case hadn't been stayed, the federal action would probably already be at trial by now. [00:32:51] Speaker 03: The defense of claim preclusion has three elements. [00:32:56] Speaker 03: Identity of claims in which the suit, in which a judgment entered in the current litigation, a final judgment on the merits in the previous litigation, [00:33:04] Speaker 03: and identity or privity between the parties in the two suits. [00:33:07] Speaker 03: I still haven't heard why the defendants in the federal action are going to be able to rely upon the state court dismissing, potentially after appeals, the federal claim against Phoenix Motor Company. [00:33:20] Speaker 03: They obviously have different conduct and there's different facts involved as to whether each one of those parties may or may not have violated the wiretap back, for example. [00:33:36] Speaker 03: I believe we've already sort of run the course of the arguments on the time minutes of the appeal. [00:33:42] Speaker 03: And I think the one last thing I would say about that is that we did timely appeal the denial. [00:33:47] Speaker 03: of the motion to lift the stay. [00:33:49] Speaker 03: And if the motion to lift the stay was denied without any opinion or argument whatsoever, I don't know how the court could assess that appeal of that order, other than by looking at the prior orders that gave the reasoning for issuing the stay in the first place. [00:34:06] Speaker 03: So after we went to state court, we had all kinds of procedural attempts there to bring in new parties, new claims that were all rejected. [00:34:13] Speaker 03: And in the motion to lift the stay, the court should have considered that in lifting the stay. [00:34:17] Speaker 05: All right, we thank counsel for their arguments and the case just argued is submitted. [00:34:21] Speaker 05: With that, we are adjourned for the day.