Harper v. Trumbull

Filing 78

ORDER RE: DOCUMENTS FILED ON MAY 11, 2017. The motions 72 , 74 are DENIED. The Judgment 76 is STRICKEN. Signed by Judge Edward J. Davila on 5/12/2017. (ejdlc1S, COURT STAFF) (Filed on 5/12/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 PAUL A. HARPER, Case No. 5:07-cv-04191-RMW (EJD) Plaintiff, 9 ORDER RE: DOCUMENTS FILED ON MAY 11, 2017 v. 10 11 PATRICIA V. TRUMBULL, Re: Dkt. Nos. 72-77 United States District Court Northern District of California Defendant. 12 13 Plaintiff Paul A. Harper (“Plaintiff”), proceeding in propia persona, filed a series of 14 documents on May 11, 2017, in this dismissed, closed action, including: (1) a “Notice of Motion 15 and Motion Settlement Mediation” and supporting declaration (Dkt. Nos. 72, 73); (2) a “Notice of 16 Motion and Motion Settlement Mediation Questionnaire” (Dkt. No. 74); (3) a proposed order on a 17 settlement motion (Dkt. No. 75); (4) a purported “judgment” (Dkt. No. 76); and (5) a purported 18 order permitting Plaintiff to proceed without paying fees and costs (Dkt. No. 77). These matters 19 have been referred to the undersigned for general duty review upon the retirement of Judge Ronald 20 M. Whyte. 21 The purpose of these documents is unclear. What is apparent, however, is they have no 22 effect because nothing is pending to which they could apply. Notably, this action was dismissed 23 without prejudice on October 9, 2007, after Plaintiff failed to pay the filing fee. Dkt. No. 17. 24 Plaintiff’s subsequent appeal was dismissed by the Ninth Circuit Court of Appeals on January 21, 25 2010, pursuant to Federal Rule of Appellate Procedure 42(b). Dkt. No. 25. Judge Whyte then 26 issued orders denying Plaintiff’s motions seeking fees and costs (Dkt. Nos. 28, 55). Plaintiff 27 appealed from the second fees order, which proceeding the Ninth Circuit dismissed as frivolous on 28 1 Case No.: 5:07-cv-04191-RMW ORDER RE: DOCUMENTS FILED ON MAY 11, 2017 1 April 18, 2017. Dkt. No. 71. No issues were remanded to the district court, nor is there any need 2 for post-appeal proceedings related to settlement. Moreover, Plaintiff cannot receive fees or costs. As previously explained by Judge Whyte, 3 4 judgment was entered against Plaintiff on October 9, 2007, and that judgment has not been 5 disturbed. Dkt. No. 18. Filing a new judgment does not change that fact. Consequently, Plaintiff 6 is still not the prevailing party and cannot recover costs under Federal Rule of Civil Procedure 7 54(d). 8 9 The motions filed on May 11, 2017 (Dkt. Nos. 72, 74) are DENIED. The Judgment filed that same date (Dkt. No. 76) is STRICKEN. 10 United States District Court Northern District of California 11 12 13 14 IT IS SO ORDERED. Dated: May 12, 2017 ______________________________________ EDWARD J. DAVILA United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No.: 5:07-cv-04191-RMW ORDER RE: DOCUMENTS FILED ON MAY 11, 2017

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