Marty v. Wells Fargo Bank et al

Filing 55

ORDER signed by Judge Garland E. Burrell, Jr. on 9/20/2011 DENYING 53 Motion to Stay. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH EDWARD MARTY,
Plaintiff,

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v.

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WELLS FARGO BANK, et al.,

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Defendants.
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2:10-cv-0555-GEB-DAD
ORDER

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Pro se Plaintiff Joseph Edward Marty filed a “Motion for Stay

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of Judgment and Orders” on September 16, 2011. (Motion for Stay, ECF No.

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53.) “Plaintiff moves that the court overturn (judges) Burrell judgment

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and orders and grant Plaintiff the relief and damages outlined in his

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complaint.” Id. ¶ 5. Plaintiff argues there is new evidence which

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entitles him to relief. Id. ¶¶ 1-5. Therefore, Plaintiff’s motion is

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actually a motion for relief from the Court’s Order filed May 10, 2011,

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which dismissed Plaintiff’s case with prejudice, under Federal Rule of

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Civil Procedure (“Rule”) 60(b)(2).

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However, Plaintiff filed a notice of appeal on May 20, 2011

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and that appeal is currently pending before the United States Court of

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Appeals for the Ninth Circuit. (ECF Nos. 48-49.) This Court lacks

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jurisdiction over Plaintiff’s motion since, “filing a notice of appeal

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. . . divests the district court of jurisdiction over the matters

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appealed.” Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 734

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(9th Cir. 1988). Therefore, Plaintiff’s motion is DENIED for lack of

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jurisdiction.

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Dated:

September 20, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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