Actuate Corporation v. Aon Corporation et al

Filing 188

NOTICE RE STIPULATION OF DISMISSAL re 186 STIPULATION WITH PROPOSED ORDER PLAINTIFF ACTUATE CORPORATION AND DEFENDANT TWG WARRANTY GROUP, INC.S STIPULATION TO DISMISSAL WITH PREJUDICE filed by Actuate Corporation, 187 STIPULATION WIT H PROPOSED ORDER PLAINTIFF ACTUATE CORPORATION AND DEFENDANT TWG WARRANTY GROUP, INC.S STIPULATION TO DISMISSAL WITH PREJUDICE ACTUATE CORPORATIONS APPEAL OF THE COURTS RULING ON TWGS MOTION FOR ATTORNEYS FEES AND COSTS filed by Actuate Corporation. Signed by Judge Alsup on October 1, 2012. (whalc1, COURT STAFF) (Filed on 10/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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No. C 10-05750 WHA

ACTUATE CORPORATION,
Plaintiff,
v.

NOTICE RE STIPULATION
OF DISMISSAL

AON CORPORATION and THE
WARRANTY GROUP, INC.,
Defendants.
/

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Judgment in favor of defendant The Warranty Group, Inc. and against plaintiff Actuate

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Corporation was entered in July 2012 (Dkt. No. 164). Plaintiff timely filed a notice of appeal

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(Dkt. No. 168). Subsequently, attorney’s fees were granted for defendant (Dkt. No. 176).

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Plaintiff timely filed a notice of appeal of that order (Dkt. No. 185). Now, because of a

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purported settlement, plaintiff and defendant have filed a joint “stipulation to dismissal with

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prejudice” (Dkt. No. 186).

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This filing is improper for two reasons: First, it is improper under Rule 41(a)(1)(ii)

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because it has not been signed by all parties who have appeared (Aon Corporation). Second, this

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Court lacks jurisdiction to dismiss this action after a notice of appeal has been filed because such

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action improperly divests an appellate court from rendering a decision on the merits of a pending

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appeal. See United Nat. Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001).

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Dated: October 1, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE