Romine v. Big O Tires Corporate Headquarters et al

Filing 56

ORDER signed by District Judge Garland E. Burrell, Jr. on 6/22/2016 ORDERING that the 53 and 54 Motions are STRICKEN. (Zignago, K.)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7

CHAD J. ROMINE,

8

Plaintiff,

9
10
11

No. 2:15-cv-0401-GEB

v.

RESPONSE TO PLAINTIFF’S MOTION
TO AMEND THE AMENDED COMPLAINT
AND RENEW THE RULE 60(B) MOTION

BIG O TIRES CORPORATE
HEADQUARTERS, et al.,
Defendant.

12
13
14

Pending are Plaintiff’s Motion for Leave to Amend the

15

Amended Complaint, (ECF No. 53), and what he characterizes as his

16

Motion to “Renew” his Rule 60(b) motion.1 (ECF No. 54.) These

17

motions

18

federal claims upon which subject matter jurisdiction was based

19

were dismissed without prejudice and without leave to amend, and

20

in

21

Plaintiff’s

22

(Order 2:1-9, ECF No. 40.)

the

concern

same

a

prior

order

the

remaining

pending

district

state

lawsuit

judge

claims

in

sua

under

28

which

Plaintiff’s

sponte
U.S.C.

dismissed
1367(c).

Plaintiff’s referenced pending motions will be stricken

23
24

because

Plaintiff

has

not

shown

that

the

district

judge

has

25

jurisdiction to consider them in light of Plaintiff’s appeal to

26

the Ninth Circuit, (ECF No. 46), in which Plaintiff challenges

27
1

28

Plaintiff filed a prior Rule 60(b) motion (ECF No. 50) that was denied in an
order docketed as ECF No. 51.

1

1

certain rulings. See, e.g., Griggs v. Provident Consumer Disc.

2

Co., 459 U.S. 56, 58 (1982) (“[A] federal district court and a

3

federal

4

jurisdiction over a case simultaneously. The filing of a notice

5

of appeal . . . confers jurisdiction on the court of appeals and

6

divests

7

U.S.A., 792 F.2d 1394, 1396 n.1 (9th Cir. 1986) (stating that a

8

district court has no jurisdiction to amend its judgment after a

9

notice of appeal had been filed); Moore v. Brewster, 96 F3d 1240,

court

the

(9th

of

appeals

district

Cir.

1996)

should

court[.]”);

(stating

not

Pro

that

attempt

Sales,

a

Inc.

district

to

v.

court

assert

Texaco,

10

1246

has

no

11

jurisdiction to rule on a motion to amend the pleadings after an

12

appeal from a final judgment has been filed).

13

Since Plaintiff has not shown that the district judge

14

has jurisdiction to consider the referenced motions, the motions

15

are stricken.

16

Dated:

June 22, 2016

17
18
19
20
21
22
23
24
25
26
27
28
2