Pratt v. Office of Civil Rights et al

Filing 71

ORDER, Plaintiff's pending motion 66 is denied without prejudice for lack of jurisdiction); alternatively, the motion is denied on the merits because it does not provide a basis for relief from judgment; in forma pauperis status is revoked because the appeal in this case is frivolous re: 14-15982 (see Doc. 69 ). Signed by Senior Judge James A Teilborg on 5/27/14.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Office of Civil Rights, Colorado Dept. of)
Education, and Gateway Comm. College,)
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Defendants.
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Eddie Pratt,

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CV 12-1821-PHX-JAT
ORDER

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Plaintiff has filed a “motion to redress default judgment, motion to compel, and

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motion to reply to order.” Giving Plaintiff an extremely generous interpretation of her filing,

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this may be a motion under either Federal Rule of Civil 59 or 60. In either case, it was filed

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within 28 days from the entry of judgment.

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However, prior to filing this motion, Plaintiff filed a notice of appeal. Defendants

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have responded to Plaintiff’s motion and argued that because Plaintiff filed a notice of appeal

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before filing her motion, this Court is divested of jurisdiction to hear the motion.

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Under Federal Rule of Appellate Procedure 4(a)(4)(B)(i), this Court has jurisdiction

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to rule on motions filed under Federal Rule of Civil Procedure 59 or 60, if the motion is: 1)

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filed within 28 days of the entry of judgment (FRAP 4(a)(4)(A)(i)-(vi)); and 2) filed before

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the notice of appeal is filed (FRAP 4(a)(4)(B)(i)). Federal Rule of Appellate Procedure

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4(a)(4)(B)(i) does not directly address when the notice of appeal is filed before the motion

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itself. Specifically, Federal Rule of Appellate Procedure 4(a)(4)(B)(i) states:

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If a party files a notice of appeal after the court announces or enters judgment

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— but before it disposes of any motion listed in Rule 4(a)(4)(A) — the notice
becomes effective to appeal a judgment or order, in whole or in part, when the
order disposing of the last such remaining motion is entered.

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Thus, what is unclear is whether “before [the court] disposes of any motion listed in Rule

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4(a)(4)(A)” requires that such to-be-disposed-of motion was already pending at the time the

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notice of appeal was filed.

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In CV 10-2467-PHX-ROS at Doc. 72, the Court of Appeals instructed that the district

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court could not entertain a Federal Rule of Civil Procedure 60(b) motion without a limited

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remand from the Court of Appeals. However, in that case, the motion for reconsideration in

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the district court was not filed within 28 days from the entry of judgment. In CV 11-2260-

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PHX-JAT (Doc. 150), the Court of Appeals issued an order holding the appeal in abeyance

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when the notice of appeal and the qualifying motions under Federal Rule of Appellate

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Procedure 4(a)(4) were filed on the same day.

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Therefore, it is not clear whether this Court has jurisdiction to rule on the motion.

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However, relying on the general principle that an appeal is a jurisdiction divesting event, the

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Court will deny the motion without prejudice as beyond this Court’s jurisdiction because it

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was filed after the notice of appeal was file. But see Ross v. Marshall, 426 F.3d 745, 751-52

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(5th Cir. 2005) (“Our court has found that the timely filing of a motion listed in Rule

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4(a)(4)(A) suspends or renders dormant a notice of appeal until all such motions are disposed

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of by the trial court. [footnote omitted] This holds true regardless of whether the motion was

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filed before or after the notice of appeal. [footnote omitted]”).

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Also pending is a referral from the Court of Appeals asking this Court to determine

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whether the appeal is frivolous or in bad faith. Doc. 69. The Court finds the appeal is

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frivolous. Accordingly, in forma pauperis status is revoked. Because the Court has reviewed

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the record as a whole to make this determination, the Court further notes that Plaintiff’s

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motion to redress default judgment, motion to compel, and motion to reply to order, which

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the Court is denying as beyond the Court’s jurisdiction, would not change this Court’s

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finding that the appeal is frivolous because the Court finds that motion, on the merits, is also

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frivolous.

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Accordingly,

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IT IS ORDERED that Plaintiff’s pending motion is denied without prejudice for lack

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of jurisdiction (Doc. 66); alternatively, the motion is denied on the merits because it does not

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provide a basis for relief from judgment.

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IT IS FURTHER ORDERED that in forma pauperis status is revoked because the
appeal in this case is frivolous (see Doc. 69).
DATED this 27th day of May, 2014.

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