TRICOME v. EBAY, INC. et al

Filing 115

ORDER DENYING PLAINTIFF'S MOTIONS FOR DEFAULT JUDGMENT AND RECONSIDERATION; AND DIRECTING THAT NO FURTHER DOCUMENTS BE FILED IN THIS CLOSED CASE (addressing 112 , 113 ). Signed by Judge Jeremy Fogel on 12/10/2014. (jflc2, COURT STAFF) (Filed on 12/10/2014) (Additional attachment(s) added on 12/10/2014: # 1 Certificate/Proof of Service) (sp, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DOMENIC TRICOME,

Case No. 5:10-cv-03214-JF

Plaintiff,
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v.

United States District Court
Northern District of California

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eBAY, INC., et al.,
Defendants.

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ORDER DENYING PLAINTIFF’S
MOTIONS FOR DEFAULT JUDGMENT
AND RECONSIDERATION; AND
DIRECTING THAT NO FURTHER
DOCUMENTS BE FILED IN THIS
CLOSED CASE
[Re: ECF Nos. 112 and 113]

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Plaintiff Domenic Tricome, acting pro se, filed this action in the United States District

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Court for the Eastern District of Pennsylvania on May 30, 2009. Compl., ECF 1. Tricome

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asserted fraud and related claims against Defendant eBay, Inc. (“eBay”) and several of its officers

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and attorneys. Id. He alleged that his eBay accounts had been wrongfully suspended and that

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eBay had violated various aspects of its user agreement. Id. On October 20, 2009, the

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Pennsylvania court dismissed all defendants other than eBay and transferred the case to this

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district. Order, ECF 29. Tricome unsuccessfully appealed the transfer order, and the case was

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transferred to this Court on July 22, 2010. Dkt. Entry, ECF 36.

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This Court held a Case Management Conference on December 3, 2010. Minute Entry,

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ECF 79. Plaintiff did not appear. Id. The Court issued an Order to Show Cause why the action

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should not be dismissed for failure to prosecute, and it set a show cause hearing for February 4,

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2011. Order to Show Cause, ECF 80. Tricome filed a Motion for Sanctions and to Change

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Venue, which the Court also set for hearing on February 4, 2011. Clerk’s Notice, ECF 81. On

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February 1, 2011, after reviewing the record and the papers filed by the parties, the Court issued

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an order dismissing the action without prejudice for failure to prosecute, terminating all pending

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motions, and vacating all scheduled dates. Dismissal Order, ECF 85. Tricome appealed the

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Dismissal Order.

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On October 16, 2012, the United States Court of Appeals for the Ninth Circuit affirmed the

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dismissal of Plaintiff’s action in an unpublished Memorandum disposition. Mem. Dispo., ECF

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106. Plaintiff’s subsequent petitions for panel rehearing and rehearing en banc were denied.

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Order, ECF 107. The mandate issued on March 28, 2013. Mandate, ECF 108. Plaintiff’s petition

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for writ of certiorari was denied by the United States Supreme Court on October 7, 2013. Appeal

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Remark, ECF 111.

United States District Court
Northern District of California

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Exactly one year later, Plaintiff filed the present motions for default judgment and

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reconsideration. Motions, ECF 112, 113. Those motions are hereby DENIED. While a district

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court retains jurisdiction to entertain certain motions after affirmance of its judgment, a district

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court may not act in a manner inconsistent with a mandate of affirmance except with consent of

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the appellate court. See Palomo v. Baba, 497 F.2d 959, 960 (9th Cir. 1974). In this case, the

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mandate affirmed this Court’s dismissal of Tricome’s action for failure to prosecute. Even if his

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motions had merit, any order granting the relief Tricome has requested would be inconsistent with

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the mandate.

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As explained above, this action has been dismissed; that dismissal has been affirmed; and

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Tricome’s petition for writ of certiorari has been denied. Accordingly, no further filings will be

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entertained in this closed case.

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IT IS SO ORDERED.

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Dated: December 10, 2014
______________________________________
JEREMY FOGEL
United States District Judge

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