Kenney v. San Diego, City of et al

Filing 645

ORDER: Plaintiff's ex parte motion to stay is denied. (ECF No. 633 ). The Court retains jurisdiction over this matter. A trial is set on the remaining claims in this case against Defendants Lawrence and Koerber for 03/27/2018 at 9:00 a.m. in Courtroom 14B before Judge William Q. Hayes. Signed by Judge William Q. Hayes on 03/19/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN B. KENNEY,

Case No.: 13cv248-WQH-AGS
Plaintiff,

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v.

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ORDER

KASEYLEE LAWRENCE and
MATTHEW KOERBER,

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Defendants.

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HAYES, Judge:
The matters before the Court are the notice of appeal filed by Plaintiff John B.

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Kenney (ECF No. 634) and the ex parte motion to stay proceedings pending appeal (ECF
No. 633).
I.

NOTICE OF APPEAL
On March 13, 2018, Plaintiff filed a Notice of Appeal to the Ninth Circuit Court of

Appeals. (ECF No. 634). Plaintiff states that he appeals an order of the Court entered on
February 15, 2018, ECF No. 607. Plaintiff states that he appeals docket number 607
“amongst other Final Orders” but does not clearly identify the other orders from which he

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13cv248-WQH-AGS

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appeals. 1 See Fed. R. App. P. 3(c)(1) (“The notice of appeal must . . . designate the

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judgment, order, or part thereof being appealed[.]”). The February 15, 2018 Order is a

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minute Order which denies a motion to clarify filed by Plaintiff. (ECF No. 607). The

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motion to clarify requests the Court clarify docket number 588, which granted a prior

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motion to clarify oral rulings made by the Court at a motion in limine hearing. (ECF No.

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589).

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Generally, “[t]he filing of a notice of appeal is an event of jurisdictional significance

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– it confers jurisdiction on the court of appeals and divests the district court of its control

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over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc.

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Co., 459 U.S. 56, 58 (1982). However, this transfer of jurisdiction from the district court

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to the court of appeals does not occur when a litigant files a notice of appeal from a non-

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appealable order. See Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (“When

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a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it

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does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district

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court cannot act until the mandate has issued on the appeal does not apply.”); Ruby v. Sec’y

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of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“Where the deficiency in a notice of

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appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-

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appealable order, is clear to the district court, it may disregard the purported notice of

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appeal and proceed with the case, knowing that it has not been deprived of jurisdiction.”).

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There has been no judgment or appealable order entered in this case. The February

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15, 2018 Order of the Court denying a motion for clarification by minute order is a non-

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appealable interlocutory order. Accordingly, the Court is not divested of jurisdiction and

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this case shall proceed accordingly.

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///

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Plaintiff references “still unanswered ECF 583” in the Notice of Appeal. Docket number 583 is a pretrial
memorandum filed by Plaintiff and requires no ruling by the Court. Plaintiff additionally asserts that the
Court has not ruled on an ex parte motion for reconsideration. (ECF No. 507). Magistrate Judge Schopler
denied this motion on August 11, 2017. (ECF No. 515).
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II.

MOTION TO STAY PROCEEDINGS

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On March 13, 2018, Plaintiff filed an “ex parte motion to stay all further proceedings

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in this case &/or continue all dates – pending all actions &/or any ruling on his appeal, ECF

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632, (3/13/2018).” (ECF No. 633). Plaintiff requests a stay of all proceedings in light of

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his Notice of Appeal filed on March 13, 2018.

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continuance of all dates until after the Notice of Appeal has been ruled on. Plaintiff’s

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notice of appeal is defective because it refers to a non-appealable interlocutory order. See

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Nascimento, 508 F.3d at 908. Accordingly, the Court has not been divested of jurisdiction

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and this case shall proceed accordingly. The motion for a stay or continuance of all dates

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Alternatively, Plaintiff requests a

pending appeal is denied.
III.

CONCLUSION

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IT IS HEREBY ORDERED that Plaintiff’s ex parte motion to stay is denied. (ECF

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No. 633). The Court retains jurisdiction over this matter. A trial is set on the remaining

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claims in this case against Defendants Lawrence and Koerber for March 27, 2018 at 9:00

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a.m. in Courtroom 14B before Judge William Q. Hayes.

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Dated: March 19, 2018

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