Reddy v. Precyse Solutions, LLC et al

Filing 30

ORDER signed by District Judge Anthony W. Ishii on 1/23/2014. (Amended Complaint due by 2/18/2014).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRISHNA REDDY,

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Case No. 1:12-cv-02061-AWI-SAB

Plaintiff,
ORDER

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v.
Deadline: February 18, 2014

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PRECYSE SOLUTIONS LLC, et al.,
Defendants.

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On January 3, 2014, Plaintiff filed a motion to set aside and vacate the order dismissing

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this action and a notice of appeal. (ECF Nos. 21-23.) On January 15, 2014, District Judge

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Anthony W. Ishii issued an order vacating the dismissal of this action and ordering Plaintiff to file

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an amended complaint or notify the Court of her desire to proceed on the cognizable claims

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within thirty days. (ECF No. 27.) Plaintiff filed an amended notice of appeal on January 21,

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2014. (ECF No. 29.)

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The courts of appeals have jurisdiction over all final decisions of the district court. 28

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U.S.C. § 1291. Generally, “[o]nce a notice of appeal is filed, the district court is divested of

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jurisdiction over the matters being appealed.” National Ass’n of Home Builders v. Norton, 325

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F.3d 1165, 1167 (9th Cir. 2003) (quoting Natural Res. Defense Council v. Southwest Marine,

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Inc., 242 F.3d 1163, 1166 (9th Cir.2001)). However, “[w]hen a Notice of Appeal is defective in

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that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the
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appellate court, and so the ordinary rule that the district court cannot act until the mandate has

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issued on the appeal does not apply.” Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007).

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In this instance, Plaintiff is appealing orders denying appointment of counsel, permission

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to use the Electronic Case File system, a stay pending appeal, and transfer of this action. (ECF

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No. 29.) None of these are final orders of the district court which are appealable, and this Court

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is not deprived of jurisdiction during the pendency of Plaintiff’s appeal. See In re Westwood

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Shake & Shingle, Inc., 971 F.2d 387, 389-90 (9th Cir. 1992) (appointment of counsel); Kasey v.

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Molybdenum Corp. of America, 408 F.2d 16, 18 (9th Cir. 1969) (transfer to another district);

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Mayacamas Corp. v. Gulfstream Aerospace Corp., 806 F.2d 928, 930 (9th Cir. 1986) (stay of

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action).

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Accordingly, Plaintiff is HEREBY ORDERED to (a) file an amended complaint curing

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the deficiencies identified by the Court in its April 12, 2013 order, or (b) notify the Court in

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writing that she does not wish to file an amended complaint and is willing to proceed only against

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Precyse Solutions, LLC for those claims found to be cognizable thirty days from the date of

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service of the January 15, 2014 order. Plaintiff is ordered to either amend her complaint or

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notifiy the court of her intent to proceed on or before February 18, 2014. If Plaintiff fails to

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comply with this order, this action shall be dismissed without prior notice for failure to prosecute.

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IT IS SO ORDERED.
Dated:

January 23, 2014
UNITED STATES MAGISTRATE JUDGE

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