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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARNOLD AGUIRRE,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C 09-763 MHP (pr)
ORDER

v.

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V. MUNK, D.D.S.; et al.,

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Defendants.
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On June 1, 2011, Judgment was entered "against plaintiff and in favor of all defendant

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except defendant nurse Moses, who is dismissed without prejudice." (Docket # 73.) In the

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Order Granting Defendants' Motion For Summary Judgment that was filed on the same date,

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the court explained that nurse Moses was dismissed because, in the 2+ years the action had

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been pending, plaintiff had provided nowhere near enough information to find and serve this

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defendant. "Nurse Moses is dismissed without prejudice because he was not served within

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120 days after the complaint was filed. See Fed. R. Civ. P. 4(m). Plaintiff may file a new

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action against nurse Moses if he ever figures out his real full name and finds him." Order

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Granting Defendants' Motion For Summary Judgment, p. 21.

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Plaintiff thereafter filed a notice of appeal, then filed a motion to proceed in forma

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pauperis on appeal, and later filed a motion for leave to file a second amended complaint.

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Plaintiff's motion to proceed in forma pauperis on appeal is GRANTED. (Docket #
77.)

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The existence of the pending appeal divests this court of jurisdiction over those

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aspects of the case involved in the appeal, however. See Griggs v. Provident Consumer

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Discount Co., 459 U.S. 56, 58 (1982) (it is "generally understood that a federal district court

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and a federal court of appeals should not attempt to assert jurisdiction over a case

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simultaneously"); Pope v. Savings Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir.

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1988). Plaintiff's motion to amend (docket # 78) therefore is DENIED without prejudice to

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him filing a new motion after the Ninth Circuit Court of Appeal issues its decision in the

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pending appeal. Plaintiff is reminded, however, that the court's earlier ruling was that

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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

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he ever found that person.
IT IS SO ORDERED.
Dated: September 8, 2011

______________________
Marilyn Hall Patel
United States District Judge

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