Rodriguez et al v. City of Modesto et al

Filing 26

ORDER to DENY Without Prejudice Plaintiff's 25 F.R.Civ.P. 60(b) Motion, signed by District Judge Lawrence J. O'Neill on 4/11/201. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL RODRIGUEZ,
et al.,

CASE NO. CV F 10-1370 LJO MJS

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ORDER TO DENY WITHOUT PREJUDICE
PLAINTIFFS’ F.R.Civ.P. 60(b) MOTION
(Doc. 25.)

vs.
CITY OF MODESTO, et al,

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Defendants.
/

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Plaintiffs1 seek F.R.Civ.P. 60(b)(1) relief from dismissal of their excessive force, unlawful arrest,

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Monell and related claims against the City of Modesto and eight of its peace officers (collectively

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“defendants”) despite plaintiffs’ pending appeal of dismissal of their claims.

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This Court’s January 6, 2011 order dismissed with prejudice all of plaintiffs’ claims in their First

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Amended complaint, and judgment effective January 6, 2011 was entered against plaintiffs and in

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defendants’ favor. Plaintiffs failed to file papers to oppose defendants’ motion to dismiss. Plaintiffs

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filed an February 4, 2011 notice of appeal of dismissal of their claims, and the appeal remains pending

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before the Ninth Circuit Court of Appeals.

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On April 8, 2011, plaintiffs filed their F.R.Civ.P. 60(b)(1) motion for relief of the judgment to

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claim that their counsel failed to calendar the deadline to oppose defendants’ motion to dismiss and that

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Plaintiffs are Miguel Rodriguez (“Mr. Rodriguez”), Charisse Fernandez (“Ms. Fernandez”), and Adrian
Alizaga (“Mr. Alizaga”) and will be referred to collectively as “plaintiffs.”

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this Court erroneously dismissed plaintiffs’ claims.

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“The filing of a notice of appeal generally divests the district court of jurisdiction over the

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matters appealed.” Davis v. U.S., 667 F.2d 822, 824 (9th Cir. 1982) (vacating district court’s order on

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motion to amend complaint during pendency of appeal). In the Ninth Circuit, the general rule is that “the

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filing of a notice of appeal divests the district court of jurisdiction to dispose of the motion after an

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appeal has been taken, without remand from this court.” Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.

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1984) (quoting Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1318 (9th Cir. 1981)). “Because

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the filing of a notice of appeal generally divests the district court of jurisdiction over matters appealed,”

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a district court lacks power to amend its dismissal of an action. Pro Sales, Inc. v. Texaco, U.S.A., 792

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F.2d 1394, 1396, n. 1 (9th Cir. 1986).

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“To seek Rule 60(b) relief during the pendency of an appeal, ‘the proper procedure is to ask the

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district court whether it wishes to entertain the motion, or to grant it, and then move this court [Ninth

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Circuit], if appropriate, for remand of the case.’” Williams v. Woodford, 384 F.3d 567, 586 (9th Cir.

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2004) (citations omitted). An “appellant may make a motion to the court of appeals for a remand if the

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district court indicates an intention to grant the Rule 60(b) motion.” A district court lacks jurisdiction

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to address a post-appeal F.R.Civ.P. 60(b) motion “without remand” from the Ninth Circuit. Smith v.

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Lujan, 588 F.2d 1304, 1307 (1979). “Because [petitioner] did not observe the procedure required to

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revest the district court with jurisdiction to consider his Rule 60(b) motion, we conclude that the district

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court’s . . . order denying the motion is void for lack of jurisdiction.” Williams, 384 F.3d at 586.

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Plaintiffs’ F.R.Civ.P. 60(b) motion is premature and beyond this Court’s jurisdiction. Plaintiffs

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do not follow the Ninth Circuit’s procedure in that they essentially ask this Court to ignore the Ninth

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Circuit’s jurisdiction over dismissal of plaintiffs’ claims. Plaintiffs have not asked whether this Court

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will entertain the motion, they presume it will. Plaintiffs make no reference to the Ninth Circuit’s

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procedure to seek remand for this Court’s consideration of their F.R.Civ.P. 60(b) motion.

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The gist of plaintiffs’ F.R.Civ.P. 60(b) motion is to unwind dismissal of their excessive force

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claims as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). At this stage, this Court’s

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order to grant plaintiffs’ requested relief would be void for lack of jurisdiction. Putting aside the effect

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of the pending appeal, this Court questions the limited record of the excusable neglect of plaintiffs’
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counsel’s failure to oppose timely dismissal of plaintiffs’ claims. Nonetheless, this Court is open to

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consider the issue as well as whether it erred to dismiss plaintiffs’ excessive force claims, if it had

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jurisdiction to do so.

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In the absence of this Court’s jurisdiction, this Court is unable to entertain or grant plaintiffs’

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requested relief. Upon proper remand from the Ninth Circuit, this Court will consider plaintiff’s

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F.R.Civ.P. 60(b) motion but not prior to remand. As such, without such remand, this Court DENIES

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without prejudice plaintiffs’ F.R.Civ.P. 60(b) motion and VACATES the May 19, 2011 hearing on

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plaintiffs’ F.R.Civ.P. 60(b) motion.

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Defendants need not respond to plaintiffs’ F.R.Civ.P. 60(b) motion at this time.

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IT IS SO ORDERED.
Dated:
66h44d

April 11, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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