Parker v. Ryan et al

Filing 59

ORDER: Petitioner's motion for reconsideration (Doc. 58 ) is denied. Signed by Senior Judge James A Teilborg on 10/20/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Willie Lee Parker,
Petitioner,

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ORDER

v.

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No. CV-15-01130-PHX-JAT

Charles L Ryan, et al.,

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Respondents.

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On August 9, 2016, this Court issued an Order and Judgment ruling on the Petition

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in this case. On September 19, 2016, Petitioner filed a motion for reconsideration of that

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Order.

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Motions for reconsideration are due within 14 days. LR Civ. 7.2(g)(2). Therefore,

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if the Court accepts that Petitioner intended this filing to be a motion for reconsideration,

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it is untimely. Alternatively, if the Court deems Petitioner’s filing to be a motion to alter

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or amend judgment under Federal Rule of Civil Procedure 59, any such motion was due

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within 28 days of the August 9, 2016 judgment. Fed. R. Civ. P. 59(e). Thus, even if this

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Court treats the motion as a Rule 59 motion, it is still untimely.

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If the Court were to treat Petitioner’s filing as a motion for relief from judgment or

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order under Rule 60, it might be timely assuming it fell within the scope of the Rule.

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However, on September 8, 2016, Petitioner appealed this Court’s August 9, 2016

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Judgment to the Court of Appeals. Rule 60 motions are not motions this Court retains

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jurisdiction to consider during the pendency of an appeal unless they are filed within 28

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days of the judgment. Fed. R. App. Pro. 4(a)(4)(A)(vi); see also United Nat. Ins. v. R&D

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Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (“Once a notice of appeal takes effect,

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the district court loses jurisdiction over the matter place before the appellate court.”).

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Here, Petitioner’s motion was not filed within 28 days; therefore this Court does not have

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jurisdiction to consider it (assuming Petitioner intended it to be a Rule 60 motion).1

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For all of the foregoing reasons,

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IT IS ORDERED that Petitioner’s motion for reconsideration (Doc. 58) is denied.

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Dated this 20th day of October, 2016.

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Even if the Court applies the prison mailbox rule, the motion for reconsideration
was dated by Petitioner on September 13, 2016; thus, it is still untimely.
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