                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                       JUL 27 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 R. ANDRE KLEIN, on behalf of himself              No.   15-16230
 and all other stockholders of Apple Inc.,
                                                   D.C. No. 5:14-cv-03634-EJD
                   Plaintiff-Appellant,

    v.                                             MEMORANDUM*

 TIMOTHY D. COOK; et al.,

                   Defendants-Appellees.

                     Appeal from the United States District Court
                       for the Northern District of California
                     Edward J. Davila, District Judge, Presiding

                          Argued and Submitted July 6, 2016
                              San Francisco, California

Before: SILVERMAN, and NGUYEN, Circuit Judges, and GARBIS,** District
Judge.

         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


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
jurisdiction, we dismiss Klein’s appeal.

   1. A stay order is generally not appealable 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 appealable under the doctrine of Moses H. Cone Mem’l Hospital v.

Mercury Constr. Corp., 460 U.S. 1, 9-10 (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 “collateral estoppel

would resolve or limit the issues to be decided in federal court.”). Given this

careful, limiting language and Klein’s failure to establish a substantial possibility

that the state proceedings will bar his federal claim in this case, we cannot say that

“the sole purpose and effect of the stay” was “to surrender jurisdiction of a federal

suit to a state court.” Moses H. Cone, 460 U.S. at 10 n. 11. Cf. Lockyer v. Mirant

                                           2
Corp., 398 F.3d 1098, 1103 (9th Cir. 2005) (distinguishing appealable stay order

from “situations in which the district court clearly foresees and intends that

proceedings will resume after the stay has expired”) (citing Cofab, Inc. v. Phila.

Joint Bd., Amalgamated Clothing & Textile Workers’ Union, 141 F.3d 105, 109

(3d Cir. 1998) (holding that Moses H. Cone did not apply where the district court

had no intention to “‘deep six’ the suit”)).1

    2. The temporary stay is not an appealable collateral order under Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Klein’s justification for his

immediate appeal of the stay is not “sufficiently strong to overcome the usual

benefits of deferring appeal until litigation concludes.” Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 107 (2009). The substantive claim asserted by Klein

implicates an initial state law question that the district court acknowledged may

have no effect whatsoever on Klein’s federal claim. Some or all aspects of that

claim may yet be decided by the district court, and may ultimately be reviewable in



1
  Klein cites to Cottrell v. Duke, 737 F.3d 1238 (8th Cir. 2013), but in that case,
the district court’s “stated objective was to surrender complete jurisdiction to [the
state court] and allow Delaware to fully adjudicate the controversy.” Id. at 1244.
In addition, the appellant there showed that the state proceeding would “have the
realistic effect of precluding any future proceedings in federal court.” Id.
(emphasis added). Klein failed to make a similar showing in this appeal.

                                           3
this court. On this record, Klein has not demonstrated that the propriety of the

temporary stay here is an issue “too important to be denied review.” Cohen, 337

U.S. at 546; cf. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878

(1994) (finding that refusal to enforce a settlement agreement did “not rise to the

level of importance needed for recognition under” the collateral order doctrine).

   3. Because Klein failed to discuss any of the appropriate factors to decide

whether an otherwise non-appealable order should be treated as a petition for a writ

of mandamus, we decline to exercise jurisdiction on that basis. See Cheney v.

U.S. Dist. Court for D.C., 542 U.S. 367, 381 (2004) (petitioner must show right to

issuance of a writ is “clear and indisputable.”).

      APPEAL DISMISSED.




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