Aguirre v. Adamo et al

Filing 85

ORDER by Judge Marilyn Hall Patel granting 77 Motion for Leave to Appeal in forma pauperis; denying 78 Motion to amend without prejudice (Attachments: # 1 CertServ) (awb, COURT STAFF) (Filed on 9/8/2011)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ARNOLD AGUIRRE, 9 Plaintiff, United States District Court For the Northern District of California 10 No. C 09-763 MHP (pr) ORDER v. 11 V. MUNK, D.D.S.; et al., 12 Defendants. / 13 14 On June 1, 2011, Judgment was entered "against plaintiff and in favor of all defendant 15 except defendant nurse Moses, who is dismissed without prejudice." (Docket # 73.) In the 16 Order Granting Defendants' Motion For Summary Judgment that was filed on the same date, 17 the court explained that nurse Moses was dismissed because, in the 2+ years the action had 18 been pending, plaintiff had provided nowhere near enough information to find and serve this 19 defendant. "Nurse Moses is dismissed without prejudice because he was not served within 20 120 days after the complaint was filed. See Fed. R. Civ. P. 4(m). Plaintiff may file a new 21 action against nurse Moses if he ever figures out his real full name and finds him." Order 22 Granting Defendants' Motion For Summary Judgment, p. 21. 23 Plaintiff thereafter filed a notice of appeal, then filed a motion to proceed in forma 24 pauperis on appeal, and later filed a motion for leave to file a second amended complaint. 25 26 27 28 Plaintiff's motion to proceed in forma pauperis on appeal is GRANTED. (Docket # 77.) 1 The existence of the pending appeal divests this court of jurisdiction over those 2 aspects of the case involved in the appeal, however. See Griggs v. Provident Consumer 3 Discount Co., 459 U.S. 56, 58 (1982) (it is "generally understood that a federal district court 4 and a federal court of appeals should not attempt to assert jurisdiction over a case 5 simultaneously"); Pope v. Savings Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 6 1988). Plaintiff's motion to amend (docket # 78) therefore is DENIED without prejudice to 7 him filing a new motion after the Ninth Circuit Court of Appeal issues its decision in the 8 pending appeal. Plaintiff is reminded, however, that the court's earlier ruling was that 9 plaintiff could file a new action against nurse Moses, not amend his pleading in this action, if United States District Court For the Northern District of California 10 11 12 he ever found that person. IT IS SO ORDERED. Dated: September 8, 2011 ______________________ Marilyn Hall Patel United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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