Gamez # 131401 v. Ryan et al

Filing 120

ORDER denying 112 Plaintiff's Motion for Leave to File Sur-Reply. (See attached Order). Signed by Senior Judge Robert C Broomfield on 2/4/2014.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Carrasco Gamez,
Plaintiff,

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No. CV-12-00760-PHX-RCB
ORDER

v.
Charles L Ryan, et al.,

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Defendants.

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Currently pending before the court is a motion (Doc. 112) by plaintiff pro se

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Robert C. Gamez, Jr., seeking permission to file a sur-reply to defendants’ response to

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plaintiff’s various motions to strike. As explained below, the court lacks jurisdiction to

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consider this motion which is, in any event, moot.

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Background

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On July 2, 2013, this court granted defendants’ motion for summary judgment,

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denied plaintiff’s motion to strike, directed entry of judgment in defendants’ favor and

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found that pursuant to 28 U.S.C. § 1915(a)(3), an appeal would not be taken in good

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faith. Ord. (Doc. 110). The court’s Notice of Electronic Filing (“NEF”) indicates that

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that order was filed at 11:25 a.m. Several minutes later, at 11:32 a.m., judgment was

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entered in accordance with that court order. Doc. 111, NEF. At 1:23 p.m., on July 2,

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2013, after the entry of judgment, the plaintiff filed his motion seeking leave to file a sur-

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reply with respect to the motion to strike, which, by that time, had already been decided

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adversely to him.

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A week later, on July 9, 2013, the plaintiff filed a notice of appeal in the Ninth

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Circuit Court of Appeals. See Doc. 113. That appeal is still pending and active. In fact,

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on January 30, 2014, the plaintiff filed a request for the status of his appeal. See Gamez

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v. Norris, No. 13-16404 (9th Cir.) Doc. 22.

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Discussion

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“The filing of a notice of appeal is an event of jurisdictional significance—it confers

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jurisdiction on the court of appeals and divests the district court of its control over those

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aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co.,

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459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). Accordingly,

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plaintiff Gamez’s filing of his notice of appeal divested this court of jurisdiction.

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Consequently, the court lacks jurisdiction to consider the plaintiff’s motion to file a sur-

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reply. As an aside, the court observes that in any event, LRCiv 7.2 allows only for a

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motion, a response and a reply. That Rule makes no provision for a sur-reply. Therefore,

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the plaintiff was afforded full briefing under that Rule with respect to his motion to strike.

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In light of the foregoing, the court hereby DENIES the plaintiff’s motion seeking

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“permission to file a sur[-]reply to defendants[’] dkt. 109[.]” See Mot. (Doc. 112).
DATED this 2nd day of February, 2014.

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