Miller v. Oliveira

Filing 31

ORDER by Judge Edward M. Chen Denying 25 Plaintiff's Motion for Reconsideration; and Denying 28 Plaintiff's Motion for Leave to Appeal In Forma Pauperis. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 7/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EVAN MILLER,

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Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION;
AND DENYING PLAINTIFF’S MOTION
FOR LEAVE TO APPEAL IN FORMA
PAUPERIS

v.

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For the Northern District of California

United States District Court

No. C-13-0846 EMC

SHEILA OLIVEIRA,

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Defendant.
___________________________________/

(Docket Nos. 25, 28)

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Previously, the Court granted Defendant Sheila Oliveira’s motion to dismiss and instructed

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the Clerk of the Court to enter a judgment in accordance with that order. See Docket No. 23 (order).

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A final judgment was entered on May 14, 2013. See Docket No. 24 (final judgment). Thereafter,

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Plaintiff Evan Miller filed the currently pending motion in which he asks the Court to reconsider its

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order of dismissal. The Court finds this matter suitable for disposition without oral argument. For

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the reasons discussed below, Mr. Miller’s motion is DENIED. In addition, the Court DENIES Mr.

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Miller’s motion for leave to appeal in forma pauperis.

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I.
A.

DISCUSSION

Motion for Reconsideration
Mr. Miller has filed a motion in which he seeks reconsideration of this Court’s order granting

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Ms. Oliveira’s motion to dismiss. Because Mr. Miller did not file his motion until after the final

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judgment was entered in this case, the Court construes his motion as either a motion brought

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pursuant to Federal Rule of Civil Procedure 59(e) or as a motion brought pursuant to Rule 60(b).

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To the extent Mr. Miller has filed a Rule 59(e) motion to alter or amend the judgment, the

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motion is denied because it was not timely made. Rule 59(e) provides that such a motion “must be

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filed no later than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). Here, a final

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judgment was entered on May 14, 2013. See Docket No. 24 (final judgment). Mr. Miller, however,

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did not file his motion until more than 30 days later (i.e., on June 14, 2013). See Docket No. 25

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(motion).

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To the extent Mr. Miller has filed a Rule 60(b) motion for relief from judgment, there is no

filed a notice of appeal to the Ninth Circuit. See Docket No. 27 (notice of appeal). Generally, once

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a party files a notice of appeal, the district court is divested of jurisdiction over any matter which is

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For the Northern District of California

time bar. However, the Court must take into account that, after filing his motion, Mr. Miller also

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United States District Court

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the subject matter of the appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58

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(1982) (stating that “[t]he filing of a notice of appeal is an event of jurisdictional significance – it

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confers jurisdiction on the court of appeals and divests the district court of its control over those

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aspects of the case involved in the appeal”). There is, however, an exception to this general rule.

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Federal Rule of Appellate Procedure 4(a)(4)(B)(I) allows a district court to amend a judgment, even

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when a notice of appeal has been filed, in certain situations. The rule provides as follows: “If a party

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files a notice of appeal after the court announces or enters a judgment – but before it disposes of any

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motion listed in Rule 4(a)(4)(A) – the notice becomes effective to appeal a judgment or order, in

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whole or in part, when the order disposing of the last such remaining motion is entered.” Fed. R.

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App. P. 4(a)(4)(B)(I) (emphasis added). Rule 4(a)(4)(A) identifies several motions, including a Rule

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60 motion. However, in order to get the benefit of Rule 4(a)(4)(A), the Rule 60 motion at least must

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have been “filed no later than 28 days after the judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi).

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As noted above, Mr. Miller did not file his motion until more than 30 days after the final judgment

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was entered, and so the general rule that a district court is divested of jurisdiction upon appeal would

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seem to be applicable.

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That being said, the Court acknowledges that, under Federal Rule of Civil Procedure 62.1(a),

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“[i]f a timely motion is made for relief that the court lacks authority to grant because of an appeal

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that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the

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purpose or that the motion raises a substantial issue.” Fed. R. Civ. P. 62.1(a); see also Davis v.

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Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007) (stating that “a district court may entertain and

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decide a Rule 60(b) motion after notice of appeal is filed if the movant follows a certain procedure,

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which is to ‘ask the district court whether it wishes to entertain the motion, or to grant it, and then

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move this court [i.e., the Ninth Circuit], if appropriate, for remand of the case’”); Williams v.

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Woodford, 384 F.3d 567, 586 (9th Cir. 2002) (stating that, “[t]o seek Rule 60(b) relief during the

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pendency of an appeal, the proper procedure is to ask the district court whether it wishes to entertain

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the motion, or to grant it, and then move this court, if appropriate, for remand of the case”) (internal

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quotation marks omitted). Although Mr. Miller has not invoked this procedure, the Court shall, in

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For the Northern District of California

motion; or (3) state either that it would grant the motion if the court of appeals remands for that

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United States District Court

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the interest of moving the litigation forward, deem Mr. Miller to have made such a request,

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particularly given that he is a pro se litigant (although apparently also an attorney). See Docket No.

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28 (IFP App. at 9).

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The Court has reviewed the arguments made in Mr. Miller’s motion and finds that none has

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merit.1 For example, Mr. Miller argues that, once Larry Vigil and Ms. Oliveira entered into the

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settlement agreement which was then incorporated into a final judgment by the family court, “the

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family court was forever divested of jurisdiction over the issues contained in the settlement

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agreement.” Mot. at 1. But the family court apparently concluded otherwise and decided to

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terminate the spousal obligation owed by Ms. Oliveira to Mr. Vigil. Mr. Miller’s attack of that

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ruling herein is foreclosed by the Rooker-Feldman doctrine. See Bell v. City of Boise, 709 F.3d 890,

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898 (9th Cir. 2013). Furthermore, Mr. Miller’s contention that the family court lacked the authority

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to modify the spousal obligation is not supported by the authority he cites. For example, in In re

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Marriage of Aninger, 220 Cal. App. 3d 230 (1990), the state court simply stated that “the trial

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court’s discretion to modify the spousal support order is constrained by the terms of the marital

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settlement agreement.” Id. at 238. Here, Mr. Vigil and Ms. Oliveira’s settlement agreement stated

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that spousal support may not be modified upward; it did not prohibit termination of spousal support.

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The Court assumes for purposes of this opinion that Mr. Miller has claimed a legal error by
this Court which may be addressed through Rule 60(b)(1) (mistake) or 60(b)(6) (the catchall).

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Accordingly, the Court denies Mr. Miller’s Rule 60(b) motion.
B.

Motion for Leave to Appeal In Forma Pauperis
Under Federal Rule of Appellate Procedure 24(a)(1), “a party to a district-court action who

24(a)(1). “If the district court denies the motion, it must state its reasons in writing.” Fed. R. App.

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P. 24(a)(2). Under 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the

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trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The Ninth

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Circuit has construed “not taken in good faith” to mean frivolous. See Hooker v. American Airlines,

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302 F.3d 1091, 1092 (9th Cir. 2002) (stating that “[i]f at least one issue or claim is found to be

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non-frivolous, leave to proceed in forma pauperis on appeal must be granted for the case as a

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desires to appeal in forma pauperis must file a motion in the district court.” Fed. R. App. P.

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United States District Court

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whole”).

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Here, the Court finds Mr. Miller’s appeal frivolous. He has failed to explain why the

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Rooker-Feldman doctrine is not a bar to the bulk of his claims and how there is subject matter

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jurisdiction over that part of his claims that is not subject to the Rooker-Feldman bar. Moreover, as

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noted above, on its face, the settlement agreement does not prohibit termination of spousal support.

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II.

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For the foregoing reasons, Mr. Miller’s request for relief is denied.

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Pursuant to Federal Rule of Appellate Procedure 24(a)(4), the Clerk of the Court is

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instructed to immediately notify the Ninth Circuit that this Court has denied Mr. Miller’s

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motion to proceed on appeal in forma pauperis and certified in writing that the appeal is not

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taken in good faith. See Fed. R. App. P. 24(a)(4).

CONCLUSION

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This order disposes of Docket Nos. 25 and 28.

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IT IS SO ORDERED.

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Dated: July 2, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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