R. Klein v. Timothy Cook

MEMORANDUM

R. Andre Klein appeals from a temporary stay order issued by the district court pursuant to its inherent power to control its docket. Because we lack jurisdiction, we dismiss Klein’s appeal.

1. A stay order is generally not appeal-able under 28 U.S.C. § 1291 . See, e.g., Stanley v. Chappell, 764 F.3d 990, 993-95 (9th Cir. 2014). Klein argues that the district court’s order puts him “effectively out of court” and is therefore immediately ap-pealable under the doctrine of Moses H. Cone Mem’l Hospital v. Mercury Constr. Corp., 460 U.S. 1, 9-10 , 103 S.Ct. 927 , 74 L.Ed.2d 765 (1983). Unlike the stay order in Moses H. Cone, however, the district court here specifically contemplated ongoing litigation of Klein’s claims in federal court: It expressly stated that it would adjudicate Klein’s claims, repeatedly characterized its stay order as “temporary,” and stressed that the state action “would not preclude [Klein’s prosecution of his federal claim] altogether since [the district court] would retain jurisdiction over it.” (emphasis added). Cf. Silberkleit v. Kantrowitz, 713 F.2d 433, 434 (9th Cir. 1983) (stay order appealable where district court expressly held that…