Schrupp v. Wells Fargo Bank, N.A. et al.

Filing 78

MEMORANDUM AND ORDER RE: PLAINTIFF'S REQUEST FOR CLARIFICATION AND DEFENDANT'S MOTION FOR ATTORNEY FEES signed by Senior Judge William B. Shubb on 6/20/2018: IT IS ORDERED that plaintiff's Request for Consideration 71 be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that defendant's Motion for Attorney Fees 73 be, and the same hereby is, STAYED pending resolution of the appeal. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL SCHRUPP, an individual,

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Plaintiff,

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CIV. NO. 2:16-636 WBS KJN

v.
WELLS FARGO BANK, N.A.; NDEX
WEST, L.L.C.; and DOES 1-20,
inclusive,

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MEMORANDUM AND ORDER RE:
PLAINTIFF’S REQUEST FOR
CLARIFICATION AND DEFENDANT’S
MOTION FOR ATTORNEY FEES

Defendants.

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On May 16, 2018, this court entered an order granting

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Wells Fargo’s Motion for Summary Judgment and denying plaintiff’s

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Motion for Partial Summary Judgment.

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before the court are plaintiff’s Request for Clarification of

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this Order (Docket No. 71) and Wells Fargo’s Motion for Attorney

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Fees (Docket No. 73).

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I.

(Docket No. 65.)

Presently

Request for Clarification

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Plaintiff filed this Request for Clarification on May

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23, 2018.

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clarify whether it overruled plaintiff’s Objections in Opposition

Specifically, plaintiff requests that the court

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to Wells Fargo’s Motion for Summary Judgment (Docket No. 60-2)

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and plaintiff’s Objections to the Declaration of Meredith Deal in

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Reply to Wells Fargo’s Opposition to Plaintiff’s Motion for

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Partial Summary Judgment (Docket No. 63 at 16).

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A week before filing this request, however, on May 16,

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2018, plaintiff filed a Notice of Appeal.

(Docket No. 67.)

As a

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general rule, the filing of a notice of appeal divests a district

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court of jurisdiction over those aspects of the case involved in

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the appeal.

See Marrese v. American Academy of Ortho. Surgeons,

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470 U.S. 373, 379 (1985); see also Smith v. Lujan, 588 F.2d 1304,

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1307 (9th Cir. 1979).

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court may retain jurisdiction to clarify its judgment pursuant to

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Fed. R. Civ. P. 60(a).

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Cir. 1997).

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As an exception to this rule, a district

Stein v. Wood, 127 F.3d 1187, 1189 (9th

Rule 60(a), however, allows only for correction of

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clerical mistakes or mistakes arising from oversight or omission.

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Here, the court made no mistakes in its Order of May 16, 2018.

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Because the court relied extensively upon portions of the

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Declaration of Meredith Deal in its Order, plaintiff is correct

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in assuming that the court overruled his objections to those

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portions of the Declaration.

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expressly so state, and no clarification of the court’s Order is

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necessary.

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II.

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There was no need for the court to

Motion for Attorney Fees
On June 1, 2018, after plaintiff had filed the appeal,

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Wells Fargo filed a Motion for Attorney Fees.

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Federal Rule of Civil Procedure 54(d) governs the litigation of

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attorney fee motions and bills of costs.
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(Docket No. 73.)

“If an appeal on the

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merits of the case is taken, the court may rule on the claim for

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fees, may defer its ruling on the motion, or may deny the motion

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without prejudice, directing . . . a new period for filing after

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the appeal has been resolved.”

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committee note (1993).

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discretion, will stay consideration of Wells Fargo’s Motion for

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Attorney Fees pending the resolution of the appeal.

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Fed. R. Civ. P. 54 advisory

The court here, exercising its

IT IS THEREFORE ORDERED that plaintiff’s Request for
Consideration (Docket No. 71) be, and the same hereby is, DENIED.

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IT IS FURTHER ORDERED that defendant’s Motion for

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Attorney Fees be, and the same hereby is, STAYED pending

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resolution of the appeal.

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Dated:

June 20, 2018

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