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United States District Court

For the Northern District of California 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

GREENSPRINGS BAPTIST CHRISTIAN 

FELLOWSHIP TRUST, 

 Plaintiff, 

v. 

JAMES P. CILLEY, an individual; 

MARK A. SCHMUCK, an individual; 

and TEMMERMAN, CILLEY & KOHLMANN, 

LLP, 

 

 Defendants. 

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Case No. 09-1054 SC 

ORDER TO SHOW CAUSE

 This Court previously granted Defendants' motion to strike the 

First Amended Complaint ("FAC") of Plaintiff Greensprings Baptist 

Christian Fellowship Trust ("Greensprings") pursuant to 

California's anti-SLAPP provision, California Code of Civil 

Procedure Section 425.16 ("§ 425.16"). Docket No. 60 ("Order"). 

As discussed in this Court's prior Order, Greensprings brought this 

suit for malicious prosecution against Robert Miller, Barbara 

Miller, and Anne Miller ("the Millers") and Attorney Defendants. 

See Compl., Docket No. 1. Greensprings claims that a previous suit 

brought by Attorney Defendants on behalf of the Millers, Miller v. 

Greensprings Baptist Christian Fellowship Trust, No. 07-4776 (N.D. 

Cal. removed Sept. 17, 2007) ("the Miller suit"), was filed 

Case 3:09-cv-01054-SC Document 107 Filed 02/04/10 Page 1 of 3
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United States District Court

For the Northern District of California 

maliciously and without probable cause.1 The Court concluded that 

although the Miller Suit was brought, at least in part, without 

probable cause, Greensprings failed to establish that either the 

Millers or the Attorney Defendants had acted maliciously. Order at 

26. This Court granted Greensprings leave to amend their 

allegations to establish malice. Id. Greensprings has filed a 

Second Amended Complaint, Docket No. 63, and Attorney Defendants 

have appealed this Court's grant of leave to amend, Docket No. 71. 

The appeal remains pending before the Ninth Circuit. 

 When Attorney Defendants filed their notice of appeal, they 

did not request a stay of proceedings before this Court. Instead, 

they filed a second Special Motion to Strike the Second Amended 

Complaint, which is currently pending. Docket No. 76 ("Second 

Motion"). "In general, filing of a notice of appeal confers 

jurisdiction on the court of appeals and divests the district court 

of control over those aspects of the case involved in the appeal." 

Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 

(1985). The matter being appealed -- whether it was proper for 

this Court to allow Greensprings the opportunity to submit a Second 

Amended Complaint -- is directly related to the issue immediately 

before this Court -- whether that Second Amended Complaint may be 

stricken under § 425.16. This Court therefore questions whether it 

has jurisdiction to rule upon Attorney Defendants' Special Motion 

at this time. 

 Even if jurisdiction exists, this Court has broad discretion 

to stay proceedings pending the outcome of the appeal in order to 

 

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 This Court has since entered a consent judgment between 

Greensprings and the Millers. Docket No. 74. Attorney Defendants 

are the only defendants remaining in this suit. 

Case 3:09-cv-01054-SC Document 107 Filed 02/04/10 Page 2 of 3
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United States District Court

For the Northern District of California 

"promote economy of time and effort for itself, for counsel, and 

for litigants." Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th 

Cir. 1972) (quotations and citations omitted). Should the Ninth 

Circuit conclude that Greensprings should not have been afforded 

the opportunity to submit the Second Amended Complaint, then it 

would be pointless for this Court to determine whether the Second 

Amended Complaint must be stricken pursuant to § 405.16. Even if 

this Court has jurisdiction to rule upon the Second Motion, the 

Court would be inclined to stay proceedings, sua sponte, and to 

dismiss the Second Motion with leave to refile, if necessary, after 

the Ninth Circuit has reached a conclusion. 

 The Court will allow both parties an opportunity to address 

this Court's concerns before it issues an order. Attorney 

Defendants may submit a five-page brief no later than Thursday, 

February 11, 2010. Greensprings may submit a five-page brief no 

later than Wednesday, February 17, 2010. 

IT IS SO ORDERED. 

Dated: February 4, 2010 

UNITED STATES DISTRICT JUDGE

Case 3:09-cv-01054-SC Document 107 Filed 02/04/10 Page 3 of 3