Case No. 12-cv-03929-JCS.

MICHAEL JAY DEMARTINI, et al., Plaintiffs, v. THOMAS CHRISTOPHER JOHNS, et al., Defendants.

United States District Court, N.D. California.

Editors Note
Applicable Law: 28 U.S.C. § 1332
Cause: 28 U.S.C. § 1332 Diversity - Other Contract
Nature of Suit: 190 Contract: Other
Source: PACER

Attorney(s) appearing for the Case

Michael Jay DeMartini, Plaintiff, represented by Kevin Michael Sullivan , Griffin & Sullivan.

Renate DeMartini, Plaintiff, represented by Kevin Michael Sullivan , Griffin & Sullivan.

Thomas Christopher Johns, Defendant, represented by David Ian Dalby , Hinshaw & Culbertson LLP, Edward F. Donohue , Hinshaw & Culbertson LLP & Robert John Romero , Hinshaw & Culbertson LLP.

Johns & Allyn, A.P.C., Defendant, represented by David Ian Dalby , Hinshaw & Culbertson LLP, Edward F. Donohue , Hinshaw & Culbertson LLP, Robert John Romero , Hinshaw & Culbertson LLP & Burton C. Allyn, IV , Johns & Allyn, A Professional Corporation.


Re: Dkt. No. 107

JOSEPH C. SPERO, Magistrate Judge.

Defendants Johns and Johns & Allyn bring a Motion to Correct the Docket and Dismiss the Action With Prejudice ("Motion"). Defendants contend a docket entry for an Order of the Ninth Circuit that was filed in this case (Docket No. 106) is confusing and incorrect to the extent it appears to reflect that the underlying document is the mandate of the Ninth Circuit (which the parties agree it is not). Therefore, Defendants assert, the Court should remove the document and corresponding docket entry from the docket of this case. The Court DENIES the Motion, which has no merit, and vacates the hearing set for August 25, 2017 at 9:30 a.m.1

On December 29, 2015, the undersigned entered an amended judgment in favor of Plaintiffs in this action. Defendants appealed the judgment to the Ninth Circuit, which assigned the appeal Case No. 16-15134. On June 7, 2017, the Ninth Circuit filed a "Memorandum" ("the June 7 Memorandum") in that case and provided this Court with a copy of the June 7 Memorandum. As is the Court's regular practice as to all Orders filed by the Ninth Circuit in this Court's cases that are on appeal, the Clerk filed the June 7 Memorandum in this case. See Docket No. 106.2

The Clerk's filing of the Ninth Circuit's Order in this case has no legal significance; it simply reflects action taken by the Ninth Circuit on the appeal. Further, the docket entry for the June 7 Memorandum accurately reflects the nature of that document, describing it as "USCA Memorandum as to 71 Notice of Appeal." The docket entry does not describe the Memorandum as a "Mandate." Therefore, there is nothing incorrect in this Court's docket that requires correction. The Court also notes that when the Ninth Circuit did issue its mandate, that document was provided to this Court as well and it was duly filed as Docket No. 109 ("USCA ORDER AND MANDATE"). Contrary to the speculation of Defendants, the Clerk filed the "Order and Mandate" not because it "recognized [its] mistake," see Reply at 4, but because it is the Court's practice to file all Orders it receives from the Ninth Circuit in cases pending on appeal, as noted above.

Accordingly, the Court DENIES Defendants' Motion. The parties shall provide to the Court a Joint Proposed Judgment that the parties agree is consistent with the terms of their settlement agreement in this case no later than September 1, 2017.



1. The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
2. Similarly, the Court filed the previous Orders of the Ninth Circuit in this case. See Docket Nos. 101 (failure to pay filing fee by appellant), 104 (instructing parties they should be prepared to discuss American Postal Workers Union v. United States Postal Service, 682 F.2d 1280 (9th Cir.1982) at oral argument) and 105 (denying request to file supplemental briefs).


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