Melgoza v. Kirkland

Filing 33

ORDER by Judge James Ware denying 27 Motion for indication of willingness to entertain Rule 60(b) motion; terminating 29 Motion to Set Aside Judgment (jwlc2, COURT STAFF) (Filed on 1/14/2009)

1 2 3 4 5 6 7 8 9 10 Adrian Melgoza, v. Petitioner, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 06-04861 JW ORDER DENYING PETITIONER'S MOTION TO INDICATE WILLINGNESS TO ENTERTAIN RULE 60(B) MOTION

United United States District Court

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For the Northern District of California

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Richard Kirkland, Warden, Respondent. /

Presently before the Court is Petitioner's Motion for the Court to Indicate Willingness to Entertain Rule 60(b) Motion.1 (See Docket Item No. 27.) Petitioner seeks an order stating that the Court will entertain a Rule 60(b) motion. Petitioner contemporaneously filed his Rule 60(b) motion to set aside the Court's previous order of dismissal on the ground that he has identified various errors committed by the Court in dismissing his petition. (See Docket Item No. 29.) In the Ninth Circuit, the "filing of the notice of appeal divests the district court of jurisdiction." Gould v. Mutual Life Ins. Co., 790 F.2d 769, 772 (9th Cir. 1986). When a Fed. R. Civ. P. 60(b) motion is filed in district court after a notice of appeal has been filed, the district court lacks jurisdiction to entertain the motion. See Katzir Floor & Home Designs, Inc. v. M-MLS.com, 394 F.3d 1143, 1148 (9th Cir. 2004); Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004); Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir. 1992). "To seek Rule 60(b) relief during the pendency of an appeal, the proper procedure is to ask the district court whether it wishes to entertain

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To date, Respondent has not filed opposition to this motion.

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the motion, or to grant it, and then move [the Ninth Circuit Court of Appeals], if appropriate, for remand of the case." Williams, 384 F.3d at 586; Carriger, 971 F.2d at 332. Upon review of the Petitioner's request, the Court declines to entertain Petitioner's Rule 60(b) motion. Since the Court's order declining to entertain or grant a Rule 60(b) motion is not a final determination on the merits, Petitioner is not prejudiced by this Order. See Defenders of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir. 2000). Further, entertaining Petitioner's motion would result in further delay in the resolution of Petitioner's claims. Accordingly, the Court DENIES Petitioner's Application for Court to Indicate Willingness to Entertain Rule 60(b) Motion.

United States District Court

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For the Northern District of California

Dated: January 14, 2009

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JAMES WARE United States District Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Jonathan D. Soglin, [e-mail] Gregory A. Ott, [e-mail] Dated: January 14, 2009 Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

United States District Court

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For the Northern District of California

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