John Cesario v. Biocept, Inc.; CBIZ, Inc.; Michael W. Nall; CBIZ CPAs, P.C.; Bruce E. Gerhardt; Cooley LLP; Bruce A. Huebner; Jason McCarthy; Marsha A. Chandler; Lippert/Heilshorn & Associates, Inc.; Jody Cain; Charles Bair; Timothy C. Kennedy

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JOHN CESARIO, Case No.: 23-cv-1803-WQH-BLM

Plaintiff, 10 ORDER v. 11 12 BIOCEPT, INC.; CBIZ, INC.; MICHAEL W. NALL; CBIZ 13 CPAS, P.C.; BRUCE E. 14 GERHARDT; COOLEY LLP; BRUCE A. HUEBNER; JASON 15 MCCARTHY; MARSHA A. 16 CHANDLER; LIPPERT/HEILSHORN & 17 ASSOCIATES, INC.; JODY 18 CAIN; CHARLES BAIR; TIMOTHY C. KENNEDY; 19 LYLE ARNOLD; MAXIM 20 GROUP LLC; MICHAEL W. BROWN; AEGEA 21 BIOTECHNOLOGIES INC.; 22 CBIZ ADVISORS, LLC; 23 STEPHAN FANUCCI; IVOR ROYSTON; DAVID HALE; 24 MICHAEL RABINOWITZ; 25 PAUL LAROSA; TIPTON EVANS; and ANDREW ROSEN, 26 Defendants. 27 28 1 HAYES, Judge: 2 On December 19, 2025, the Court issued an Order dismissing Plaintiff John 3 Cesario’s (“Plaintiff”) Third Amended Complaint as to all Defendants in this action, except 4 Biocept, Inc. (the “Dismissal Order”). (ECF No. 198.) 5 On January 20, 2026, Plaintiff filed a Motion to Alter Judgment (ECF No. 199) and 6 a Motion for Reconsideration (ECF No. 200). On the same day, Plaintiff filed a Notice of 7 Appeal to the Ninth Circuit. (ECF No. 201.) 8 On January 26, 2026, the Court issued an Order Setting Briefing Schedule for 9 Plaintiff’s pending motions (ECF Nos. 199, 200), which required any Defendant to file 10 their Response to those motions by March 9, 2026. (ECF No. 202.) 11 On February 20, 2026, Defendants Charles Bair and Cooley LLP (together, “Moving 12 Defendants”) filed the pending Ex Parte Motion to Stay Pending Ninth Circuit Appeal (“Ex 13 Parte Motion”). (ECF No. 208-1.) Moving Defendants contend that the Ninth Circuit lacks 14 jurisdiction over Plaintiff’s appeal of the Dismissal Order because “[t]hat order did not 15 dispose of claims as to [D]efendant Biocept, and this Court did not enter a partial judgment 16 under Federal Rule of Civil Procedure 54(b).”1 Id. at 3. Moving Defendants request that 17 the Court “stay the current [a]ction until the Ninth Circuit dismisses or resolves Plaintiff’s 18 [a]ppeal” of the Dismissal Order. Id. at 6. 19 On March 2, 2026, the Court issued an Order permitting Plaintiff to file a Response 20 to the Ex Parte Motion. (ECF No. 209.) 21 On March 5, 2026, Plaintiff filed an Opposition to the Ex Parte Motion. (ECF No. 22 211.) Plaintiff contends that “resolution of the reconsideration motion is the necessary 23 procedural next step before any appellate review.” Id. at 2. Plaintiff contends that his 24 25 26 27 1 On March 5, 2026, Moving Defendants filed a Notice of Defendants’ Motion to Dismiss Appeal for Lack of Jurisdiction filed before the Court of Appeals for the Ninth Circuit, which moves to dismiss 28 1 “timely motion” seeking reconsideration of the Dismissal Order “suspends finality” of the 2 Dismissal Order for the purposes of seeking appeal. Id. 3 If a party files a motion “to alter or amend [a] judgment under Rule 59” or “for relief 4 under Rule 60,” then the party may not subsequently file an effective notice of appeal 5 regarding the same judgment while that motion for relief remains under review. Fed. R. 6 App. 4(a)(4). Federal Rule of Appellate Procedure 4 provides that, “[i]f a party files a notice 7 of appeal after the court announces or enters a judgment—but before it disposes of any 8 motion listed in [Federal Rule of Appellate Procedure] 4(a)(4)(A)—the notice becomes 9 effective to appeal a judgment or order, in whole or in part, when the order disposing of 10 the last such remaining motion is entered.” Id. at 4(a)(4)(B)(i); see also Griggs v. Provident 11 Consumer Disc. Co., 459 U.S. 56, 61 (1982) (per curiam) (holding that a “notice of appeal 12 filed after the entry of the District Court’s judgment but while the appellant’s motion to 13 alter or amend that judgment remained pending in the District Court” was a “nullity”); 14 Miller v. Marriott Int’l, Inc., 300 F.3d 1061, 1064 (9th Cir. 2002) (“Under Rule 4(a)(4)(A), 15 the [plaintiffs’] Rule 60(b) motions prevented the [plaintiffs’] notices of appeal from 16 becoming effective until the district court rules on the merits of those motions.”); United 17 Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (“The notice of 18 appeal in this case did not, however, divest the district court of jurisdiction at the time it 19 was filed because there was then a pending motion for reconsideration.”). 20 Here, the docket reflects that Plaintiff filed his Motion to Alter Judgment and Motion 21 for Reconsideration (ECF Nos. 199, 200) prior to filing his Notice of Appeal (ECF No. 22 201). The Notice of Appeal does not divest this Court of jurisdiction over Plaintiff’s 23 pending motions seeking reconsideration of the Dismissal Order. Moreover, Plaintiff’s 24 Response in Opposition to the Ex Parte Motion clarifies his position that the motions 25 pending before this Court (ECF Nos. 199, 200) should be adjudicated prior to his appeal 26 of the Dismissal Order. 27 IT IS HEREBY ORDERED that the Ex Parte Motion to Stay Pending Ninth Circuit 28 Appeal (ECF No. 208) is denied. l IT IS FURTHER ORDERED that Defendants shall file a response to the pending 2 || Motion to Alter Judgment (ECF No. 199) and Motion for Reconsideration (ECF No. 200) 3 || within thirty (30) days of the filing of this Order. Plaintiff may file a Reply within fifteen 4 ||(15) days of the filing of any such response. 5 6 7 Dated: March 26, 2026 BE: eg Ze. Ma 8 Hon, William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28