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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 14, 2018

_________________________________
Elisabeth A. Shumaker
Clerk of Court
303 CREATIVE LLC, a limited liability
company; LORIE SMITH,

Plaintiffs - Appellants,

v. No. 17-1344
(D.C. No. 1:16-CV-02372-MSK-CBS)
AUBREY ELENIS, Director of the (D. Colo.)
Colorado Civil Rights Division, in her
official capacity; ANTHONY ARAGON,
member of the Colorado Civil Rights
Commission, in his official capacity;
ULYSSES J. CHANEY, member of the
Colorado Civil Rights Commission, in his
official capacity; MIGUEL RENE ELIAS,
member of the Colorado Civil Rights
Commission, in his official capacity;
CAROL FABRIZIO, member of the
Colorado Civil Rights Commission, in her
official capacity; HEIDI HESS, member of
the Colorado Civil Rights Commission, in
her official capacity; RITA LEWIS,
member of the Colorado Civil Rights
Commission, in her official capacity;
JESSICA POCOCK, member of the
Colorado Civil Rights Commission, in her
official capacity; CYNTHIA H.
COFFMAN, Colorado Attorney General,
in her official capacity,

Defendants - Appellees.

--------------------------------------------------

CENTER FOR CONSTITUTIONAL

JURISPRUDENCE; AMERICAN CIVIL
LIBERTIES UNION; AMERICAN CIVIL
LIBERTIES UNION OF COLORADO,
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Amici Curiae.
_________________________________

ORDER AND JUDGMENT*

_________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.

_________________________________

Plaintiffs 303 Creative LLC and Lorie Smith sued various Colorado officials

(collectively, the state) to preempt them from enforcing certain parts of the Colorado

Anti-Discrimination Act (CADA), Colo. Rev. Stat. § 24-34-601. The plaintiffs say

the CADA interferes with their plan to design wedding websites for opposite-sex—

but not same-sex—couples. Although there are some pertinent differences, the facts

and legal issues in this case overlap substantially with those in Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), which

the Supreme Court recently decided.

The plaintiffs in this case moved for a preliminary injunction below. The

district court suggested it expedite the litigation by ruling on summary judgment in

conjunction with the preliminary injunction based on stipulated facts. The parties

agreed. The district court then issued an order dismissing several of the plaintiffs’

claims for lack of standing. And it decided not to reach the merits of the plaintiffs’

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
2
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remaining claims while Masterpiece Cakeshop was pending before the Supreme

Court. It explained:

The parties have agreed that the case is at issue and that the Preliminary
Injunction Motion and Motion for Summary Judgment should be
determined together in resolution of the matters in dispute on the merits.
Although the [p]laintiffs have standing to challenge [part of the CADA],
the [c]ourt declines to rule on the merits due to the pendency of
Masterpiece Cakeshop . . . before the United States Supreme Court. As
noted, the factual and legal similarities between Masterpiece Cakeshop
and this case are striking. It is likely that a determination by the
Supreme Court will either guide determination of or eliminate the need
for resolution of the issues in this case . . . .

Further, the [c]ourt finds that the parties will not be prejudiced by delay
in resolution of the issues in this case. The [p]laintiffs are not currently
offering to build wedding websites, and no evidence has been presented
to show that their financial viability is threatened if they do not begin
offering to do so. Thus, the [c]ourt denies the Motions for Preliminary
Injunction and Summary Judgment with leave to renew after ruling by
the United States Supreme Court in Masterpiece Cakeshop.

App. vol. 3, 375.

The plaintiffs appealed this order. The state moved to dismiss this appeal for

lack of appellate jurisdiction. We reserved judgment on that motion and the parties

proceeded with their merits briefing. Then, while this appeal was pending, the

Supreme Court announced its decision in Masterpiece Cakeshop. We ordered

supplemental briefing on how that decision both affected our appellate jurisdiction

and the merits of this appeal.

Meanwhile, the plaintiffs renewed their motions for a preliminary injunction

and summary judgment in the district court, as the district court invited them to do in

its original order. The district court also ordered supplemental briefing addressing

3
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Masterpiece Cakeshop. The parties submitted their supplemental briefs to the district

court the same day they submitted their supplemental briefs to us.

In light of these developments, we now rule on the state’s pending motion to

dismiss.

Ordinarily, we only have jurisdiction to hear appeals from final orders in the

district court. See 28 U.S.C. § 1291. But the plaintiffs argue we have jurisdiction in

this case under 28 U.S.C. § 1292(a)(1), which grants us jurisdiction over certain

interlocutory orders, including those that “refus[e] . . . injunctions.” As they see it,

the district court’s order both expressly and effectively refused their preliminary-

injunction request, so it’s appealable under § 1292(a)(1). The state urges us to view

the order as a temporary stay that isn’t subject to appeal, especially now that the stay

has expired.

Although we recognize that the district court used the word “denies” in

reference to the plaintiffs’ motion for a preliminary injunction, App. vol. 3, 375, we

agree with the state that the order is properly characterized as a stay, see Forest

Guardians v. Babbitt, 174 F.3d 1178, 1185 n.11 (10th Cir. 1999) (“The labels of the

plaintiff and the district court cannot be dispositive of whether an injunction has been

requested or denied.”). After all, the district court expressly declined to reach the

merits of the plaintiffs’ arguments and granted the plaintiffs leave to renew their

motion once the Supreme Court decided Masterpiece Cakeshop. Nevertheless, the

plaintiffs argue that we had appellate jurisdiction while the stay was in effect to the

extent that the stay “had the ‘practical effect’ of refusing [the] plaintiffs’ injunction.”

4
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Forest Guardians, 174 F.3d at 1185 (quoting Carson v. Am. Brands, Inc. 450 U.S.

79, 84 (1981)). But even if this court initially had jurisdiction, the stay has since

expired, and the appeal is now moot. See Video Tutorial Servs., Inc. v. MCI

Telecomm. Corp., 79 F.3d 3, 5 (2d Cir. 1996) (“An interlocutory appeal from a

temporary stay no longer in effect . . . is the paradigm of a moot appeal.”).

Moreover, even if we were to read the district court’s order as refusing the

injunction, the district court effectively vacated that order upon the Supreme Court’s

decision in Masterpiece Cakeshop, and it now appears ready to reconsider the

plaintiffs’ motion for a preliminary injunction. Thus, this appeal is moot regardless of

how we interpret the district court’s order. See Primas v. City of Okla. City, 958 F.2d

1506, 1513 (10th Cir. 1992) (dismissing interlocutory appeal as moot because district

court vacated order appealed from). The plaintiffs’ actions below in renewing their

preliminary-injunction motion and filing supplemental briefing in support of it are

inconsistent with any argument to the contrary. Accordingly, we conclude that we

lack jurisdiction under § 1292(a)(1) to review the plaintiffs’ preliminary-injunction

motion.

The plaintiffs also seek to appeal the portion of the district court’s order

dismissing some of their claims for lack of standing.1 They argue we have pendent

appellate jurisdiction over this part of the order. See Berrey v. Asarco Inc., 439 F.3d

636, 647 (10th Cir. 2006) (“It is appropriate to exercise pendent appellate jurisdiction

1
The plaintiffs initially appealed the portion of the district court’s order
denying (pending Masterpiece Cakeshop) summary judgment as well. But they
abandoned this part of their appeal in their supplemental brief.
5
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. . . where resolution of the appealable issue necessarily resolves the nonappealable

issue, or where review of the nonappealable issue is necessary to ensure meaningful

review of the appealable one.”). But because we lack appellate jurisdiction over the

portion of the order staying the preliminary-injunction motion, we cannot exercise

pendent jurisdiction over any other part of the order. See Shinault v. Cleveland Cty.

Bd. of Cty. Comm’rs, 82 F.3d 367, 371 (10th Cir. 1996). And because the plaintiffs

don’t assert an alternative basis for us to review the partial dismissal, we dismiss the

plaintiffs’ appeal in its entirety. See EEOC v. PJ Utah, LLC, 822 F.3d 536, 542 n.7

(10th Cir. 2016) (explaining appellant has burden of establishing appellate

jurisdiction).

Therefore, even assuming we once had jurisdiction to hear this appeal, we

conclude it is now moot. Accordingly, we grant the state’s motion to dismiss this

appeal for lack of jurisdiction.

Entered for the Court

Nancy L. Moritz
Circuit Judge