Valentine v. PNC Financial Services Group, Inc., The et al
ORDER CERTIFYING APPEAL AS FRIVOLOUS AND DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION. The Court FINDS that Plaintiff's Second Amended Notice of Appeal (Doc. # 97 ) is frivolous. Consequently, this Court retains jurisdiction in this case. Additionally, the Court ORDERS that Plaintiff's Motion for Reconsideration (Doc. # 96 ) is DENIED, by Judge Christine M. Arguello on 10/9/2019.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 18-cv-01934-CMA-SKC
THE PNC FINANCIAL SERVICES GROUP, INC.,
PNC BANK, NATIONAL ASSOCIATION, a/k/a PNC Bank, NA, and
ORDER CERTIFYING APPEAL AS FRIVOLOUS AND DENYING
PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiff Elet Valentine’s Second Amended
Notice of Appeal (Doc. # 97) and Motion for Reconsideration (Doc. # 96) of this Court’s
Order Adopting and Affirming August 1, 2019 Recommendation of United States
Magistrate Judge (Doc. # 94). Based on the reasons that follow, the Court certifies
Plaintiff’s latest appeal as frivolous and denies Plaintiff’s Motion for Reconsideration.
The Court recently recounted the facts of this case in its Order adopting
Magistrate Judge Crews’ Recommendation. See (Id.). Accordingly, the Court will
reiterate the factual background only to the extent necessary to address Plaintiff’s
On August 2, 2018, Plaintiff, acting pro se, filed a Motion for an Ex Parte
Temporary Restraining Order or Preliminary Injunction which sought to enjoin
Defendants’ foreclosure on her home and to preserve evidence. See generally (Doc. #
6). This Court denied Plaintiff’s Motion, and Plaintiff appealed that decision. (Doc. ## 71,
Subsequently, Magistrate Judge Crews issued a Recommendation in which he
concluded, inter alia, that this Court should grant in part and deny in part Defendants
PNC Financial Services Group, Inc., PNC Bank, N.A., and PNC Mortgage’s
(“Defendants”) Motion to Dismiss Plaintiff’s Amended Complaint. (Doc. # 92 at 28–29.)
On August 30, 2019, this Court affirmed the Recommendation after conducting a de
novo review of Plaintiff’s objections. (Doc. # 94.) Thus, the Court denied the Motion to
Dismiss as to Plaintiff’s breach of contract claim which is based on the theory that
Defendants failed to properly apply and credit her loan payments. However, the Court
granted the Motion to Dismiss as to as to the remaining claims in Plaintiff’s Amended
Complaint. (Id. at 6.)
On September 10, 2019, Plaintiff filed a document titled Second Amended Notice
of Appeal (Doc. # 97) regarding this Court’s August 30 Order. Additionally, on
September 12, 2019, Plaintiff filed a Motion for Reconsideration of the same Order.
(Doc. # 96.)
Before proceeding to the merits of Plaintiff’s Motion for Reconsideration, the
Court must consider its jurisdiction because Plaintiff has filed multiple notices of appeal
in this case. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1276 (10th Cir. 2001)
(“A federal court has an independent obligation to examine its own jurisdiction.”).
THIS COURT RETAINS JURISDICTION
“The filing of a notice of appeal is an event of jurisdictional significance—it
confers jurisdiction on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982). However, the Tenth Circuit has held that:
Because this divestiture of jurisdiction is subject to abuse and can
unreasonably delay trial, we recognized in Stewart v. Donges, 915 F.2d
572 (10th Cir. 1991) a procedure by which a district court may maintain
jurisdiction [in] a [case] if the court certifies that [an] appeal is frivolous.
Langley v. Adams Cnty., Colo., 987 F.2d 1473, 1477 (10th Cir. 1993). Specifically, “to
regain jurisdiction, [a district court] must take the affirmative step of certifying the appeal
as frivolous or forfeited . . . .” Stewart, 915 F.2d at 577. An appeal is frivolous if “the
result is obvious or . . . the appellant’s arguments are wholly without merit.” Barnes v.
Sec. Life of Denver Ins. Co., No. 18-cv-718-WJM-SKC, 2019 WL 142113, at *2 (D.
Colo. Jan. 9, 2019) (citation omitted).
Plaintiff’s Second Amended Notice of Appeal is frivolous. It is well established
that “federal circuit courts have jurisdiction to review only ‘final decisions’ of district
courts.” Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv., II, LLC, 887 F.3d
1003, 1015 (10th Cir. 2018) (citation omitted); 28 U.S.C. § 1291. A “final decision must
dispose of all claims by all parties, except a decision may otherwise be considered final
if it is properly certified as a final judgment under Federal Rule of Civil Procedure 54(b).”
New Mexico v. Trujillo, 813 F.3d 1308, 1316 (10th Cir. 2016).
In the instant case, this Court’s Order Adopting and Affirming August 1, 2019
Recommendation of Untied States Magistrate Judge did not dispose of all of Plaintiff’s
claims. See (Doc. # 94 at 6). Therefore, the Order is not a final decision for purposes of
28 U.S.C. § 1291. Moreover, the Court has not certified the Order as a final judgment
pursuant to Federal Rule of Civil Procedure 54. Accordingly, the Order is not
Because it is obvious from a review of the docket that this Court’s Order is not
appealable, the Court hereby certifies Plaintiff’s Second Amended Notice of Appeal
(Doc. # 97) as frivolous. 1 As a result, this Court retains jurisdiction to consider the merits
of this case. Stewart, 915 F.2d at 577.
PLAINTIFF’S MOTION FOR RECONSIDERATION
Plaintiff’s Motion for Reconsideration is lacking in merit. The Motion asserts the
same arguments that Plaintiff raised in her Objection (Doc. # 93) to Magistrate Judge
Crews’ Recommendation. The Court addressed those arguments in its Order adopting
the Recommendation. See (Doc. # 94 at 4–5). Moreover, “[a] motion for reconsideration
is not appropriate to revisit issues already addressed or advance arguments that could
To the extent that Plaintiff asserts that her initial appeal of this Court’s denial of her motion for
preliminary injunctive relief divested this Court of jurisdiction, the Court reiterates that “[a]lthough
the filing of a notice of appeal ordinarily divests the district court of jurisdiction, in an appeal from
an order granting or denying a preliminary injunction, a district court may nevertheless proceed
to determine the action on the merits.” (Doc. # 94 at 5) (quoting (Doc. # 92 at 3 n.1) (Magistrate
Judge Crews’ Recommendation) (quoting Free Speech v. Fed. Election Comm’n, 720 F.3d 788,
791 (10th Cir. 2013))).
have been raised in prior briefing.” Gebremedhin v. Am. Family Mut. Ins. Co., No. 13-cv02813-CMA-BNB, 2016 WL 7868815, at *1 (D. Colo. Feb. 5, 2016).
Based on the foregoing, the Court FINDS that Plaintiff’s Second Amended Notice
of Appeal (Doc. # 97) is frivolous. Consequently, this Court retains jurisdiction in this
case. Additionally, the Court ORDERS that Plaintiff’s Motion for Reconsideration (Doc. #
96) is DENIED.
DATED: October 9, 2019
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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