Tobin v. City & County of San Francisco Police Department et al

Filing 120

ORDER by Judge Maria-Elena James vacating hearing on and denying 116 Motion for Reconsideration. (mejlc3, COURT STAFF) (Filed on 11/28/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PATRICK J. TOBIN,

Case No. 13-cv-01504-MEJ

Plaintiff,
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ORDER VACATING HEARING;
DENYING MOTION FOR
RECONSIDERATION

v.
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United States District Court
Northern District of California

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CITY & COUNTY OF SAN FRANCISCO
POLICE DEPARTMENT, et al.,

Dkt. No. 116

Defendants.

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INTRODUCTION

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Pending before the Court is Plaintiff Patrick Tobin’s (“Plaintiff”) Motion for

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Reconsideration of the Order and Judgment pursuant to Federal Rule of Civil Procedure 60 (the

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“Rule 60 Motion”). See Mot., Dkt. No. 116. Defendant City and County of San Francisco

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(“Defendant”) filed an Opposition (Dkt. No. 118); Plaintiff did not file a Reply.

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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court

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finds this matter suitable for disposition without oral argument and hereby VACATES the

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December 15, 2016 hearing in this matter. For the reasons stated below, the Court DENIES

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Plaintiff’s Rule 60 Motion.

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DISCUSSION

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The Court granted Defendant’s Motion for Summary Judgment on October 4, 2016, and

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entered judgment for Defendant and against Plaintiff on the same day. See Order, Dkt. No. 113;

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J., Dkt. No. 114. Plaintiff filed the Rule 60 Motion on November 2, 2016, 29 days after the Court

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entered judgment. See Mot. Plaintiff also appealed the Court’s Judgment, including but not

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limited to all interlocutory orders, on November 3, 2016. Not. of Appeal, Dkt. No. 117.

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“The filing of a notice of appeal generally divests the district court of jurisdiction over the

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matters appealed.” Davis v. U.S., 667 F.2d 822, 824 (9th Cir. 1982); see also Apple, Inc. v.

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Samsung Elecs. Co., 2012 WL 1987042, at *1 (N.D. Cal. June 4, 2012) (“The general rule is that

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once a notice of appeal is filed it confers jurisdiction on the court of appeals and divests the district

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court of jurisdiction with respect to matters involved with the appeal.” (citing Griggs v. Provident

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Consumer Discount Co., 459 U.S. 56, 59 (1982)). A limited exception allows district courts to

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exercise jurisdiction to decide a Rule 60 Motion if the motion is filed within 28 days after the

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judgment is entered. See Fed. R. App. P. 4(a)(4)(B)(i); see also ConocoPhillips Co. v. Milestone

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Pac. Props., LLC, 2010 WL 4608223, at *1 (N.D. Cal. Nov. 3, 2010) (“[U]nder Federal Rule of

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Appellate Procedure 4(a)(4)(B) (i), a notice of appeal does not become effective, and the district
court does not lose jurisdiction, until the district court rules on all motions for reconsideration filed

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United States District Court
Northern District of California

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no later than twenty-eight days after judgment is entered.”) (emphasis in original)).

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Because Plaintiff did not file the Rule 60 Motion within 28 days after this Court entered

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judgment, the Rule 60 Motion was not “pending” under Fed. R. App. P. 4(a)(B)(i) when Plaintiff

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filed his notice of appeal. The Court accordingly was divested of jurisdiction on November 3,

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2016 and therefore must deny the Motion as untimely. See ConocoPhillips Co., 2010 WL

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4608223, at *1 (where defendants filed both Rule 60 motion for reconsideration and notice of

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appeal 30 days after judgment entered, court denied Rule 60 motion as untimely because filing of

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notice of appeal divested court of jurisdiction).

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IT IS SO ORDERED.

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Dated: November 28, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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