Van Hope-el v. U.S. Department of State, et al.

Filing 55

ORDER DENYING 54 Plaintiff's Motions to Amend and Correct a Clerical Error for Lack of Jurisdiction, signed by Magistrate Judge Jennifer L. Thurston on 6/12/2019. No further filings will be accepted in this action. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOUDON VAN HOPE-EL,

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Plaintiff,

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v.
UNITED STATES DEPARTMENT OF
STATE,

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Defendant.
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I.

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Case No.: 1:18-cv-0441 – JLT
ORDER DENYING PLAINTIFF’S MOTIONS TO
AMEND AND CORRECT A CLERICAL ERROR
FOR LACK OF JURISDICTION
(Doc. 54)

Background
Joudon Van Hope-el alleged that the United States Department of State and the Department of

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Justice have violated his “cultural identity, integrity and cultural heritage by refusing to add [his]

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cultural title” to his passport.” (Doc. 1 at 7) For this, he requested compensation in the amount of $50

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million dollars. (Id. at 9) The Government sought dismissal of the complaint “for lack of subject

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matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim

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upon which relief can be granted pursuant to Rule 12(b)(6).” (Doc. 44 at 3) On January 23, 2019, the

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Court granted the Government’s motion to dismiss. (Doc. 48)

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Plaintiff filed a Notice of Appeal on February 20, 2019. (Doc. 50) After the appeal was

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processed to the Ninth Circuit, he attempted to file a proposed amended complaint. However, the

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document was returned to Plaintiff by the Clerk of Court, because the matter is closed. Plaintiff

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asserts the return of his proposed amended complaint was a clerical error and seeks correction of this
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under Rule 60 of the Federal Rules of Civil Procedure. In addition, Plaintiff seeks leave to amend his

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complaint under Rule 15 of the Federal Rules of Civil Procedure. (Doc. 54)

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III.

Jurisdiction and Leave to Amend the Complaint

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Significantly, it is well-established that upon the filing of a timely notice of appeal, jurisdiction

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is immediately transferred from the district court to the appellate court. See, e.g., Hovey v. McDonald,

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109 U.S. 150, 157 (1883) (“an appeal suspends the power of the court below to proceed further in the

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cause”); Pyrodyne Corp. v. Pyrotronics Corp., 847 F.2d 1398, 1403 (9th Cir. 1988) (filing of a notice

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of appeal generally divests a district court of jurisdiction to determine the “substantial rights” at issue

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in an action during the pendency of the appeal). Instead, during the pendency of the appeal, the

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district court retains only the limited jurisdiction to assist the appellate court in its resolution of the

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appeal. See United States v. Lafko, 520 F.2d 622, 627 (3d Cir. 1975).
Because Plaintiff has appealed the Court’s order dismissing the action for lack of jurisdiction

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to the Ninth Circuit, the district court now lacks jurisdiction to allow Plaintiff to file an amended

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complaint in this action.

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III.

Clerical Error
Rule 60(a) provides that “[t]he court may correct a clerical mistake or a mistake arising from

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oversight or omission whenever one is found in a judgment, order, or other part of the record.”

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Fed.R.Civ. P. 60(a) Further, Rule 60(a) indicates that “after an appeal has been docketed in the

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appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s

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leave.” Id. Because Plaintiff’s appeal has been docketed in the Ninth Circuit, any identified clerical

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error may only be corrected with leave from the Ninth Circuit.

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IV.

Conclusion and Order

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Based upon the foregoing, the Court ORDERS:

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1.

Plaintiff’s motion to correct a clerical error is DENIED; and

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2.

Plaintiff’s motion to amend the complaint is DENIED for lack of jurisdiction.

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Plaintiff is advised that no further filings will be accepted in this action—including proposed

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amended complaints. The Court will take its direction as to whether or how to proceed directly from

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the Ninth Circuit Court of Appeals.

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IT IS SO ORDERED.
Dated:

June 12, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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