Grandinetti v. Grandinetti
ORDER DISMISSING MOTION FOR FRAP 4(a)(4)(A)(ii) and FRCP 52(b) REMEDIES FOR LACK OF JURISDICTION re 7 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/1/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Francis Grandinetti served by first class mail at the address of record on December 2, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LINDA C.C.C. GRANDINETTI,
CIV. No. 14-00393 SOM/BMK
ORDER DISMISSING MOTION FOR FRAP
4(a)(4)(A)(ii) AND FRCP 52(b)
REMEDIES FOR LACK OF
ORDER DISMISSING MOTION FOR FRAP 4(a)(4)(A)(ii)
AND FRCP 52(b) REMEDIES FOR LACK OF JURISDICTION
On September 26, 2014, the court dismissed this action
and denied Plaintiff’s in forma pauperis request pursuant to 28
U.S.C. § 1915(g), without prejudice to Plaintiff’s refiling his
claims with concurrent payment of the filing fee in the District
See Doc. No. 4.
Judgment entered that day.
On November 26, 2014, Plaintiff filed a notice of
Doc. No. 6 (given to prison officials for mailing on
November 21, 2014).
Two days later, on November 28, 2014,
Plaintiff filed this “Motion For FRAP 4(a)(4)(A)(ii) and FRCP
Doc. No. 7 (given to prison officials for
mailing on November 24, 2014).
For the following reasons, the
Court DISMISSES Plaintiff’s Motion.
Federal Rule of Civil Procedure 52(b) states:
Amended or Additional Findings. On a party’s
motion filed no later than 28 days after the
entry of judgment, the court may amend its
findings – or make additional findings – and
may amend the judgment accordingly. The
motion may accompany a motion for a new trial
under Rule 59.
Federal Rule of Appellate Procedure 4(a) states in
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the
district court any of the following motions
under the Federal Rules of Civil Procedure,
the time to file an appeal runs for all
parties from the entry of the order disposing
of the last such remaining motion:
(ii) to amend or make additional factual
findings under Rule 52(b), whether or not
granting the motion would alter the judgment.
Plaintiff’s Motion is untimely.
See Fed. R. Civ. P.
Therefore, Rule 4(A)(4)(ii) has no effect on the date
Plaintiff may file a notice of appeal.
More importantly, Plaintiff filed a notice of appeal
four days before filing the instant motion.
Generally, once a
party files a notice of appeal, the district court is divested of
jurisdiction over any matter which is the subject matter of the
See Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 58 (1982); Natural Res. Def. Council, Inc. v. Sw. Marine
Inc., 242 F.3d 1163, 1166 (9th Cir. 2001).
While a “notice [of
appeal] filed before the filing of one of the specified motions
[in Appellate Rule 4(a)(4)] . . . is, in effect, suspended until
the motion is disposed of,” Transmittal Note to the 1993
Amendment to Appellate Rule 4(a)(4), this exception applies only
when the motion itself is timely.
See Yousefian v. City of
Glendale, 2013 WL 948743, at *1 (C.D. Cal. Mar.11, 2013) (citing
Crawford v. Kingdom of Saudi Arabia, 2012 WL 3638628, at *3 (N.D.
Cal. Aug.22, 2012) (stating that the Ninth Circuit held appeal in
abeyance pending the district court’s resolution of a
post-judgment motion filed after the notice of appeal but within
Rule 4(a)(4)’s 28-day time period)).
This court lacks
jurisdiction to decide Plaintiff’s Motion.
Finally, even if Plaintiff’s Motion was timely and
appellate jurisdiction were suspended, Plaintiff presents no
coherent reason for the court to amend its judgment or make
Plaintiff’s Motion for FRAP 4(a)(4)(a)(ii) and FRCP
52(b) Remedies is DISMISSED for lack of jurisdiction.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 1, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Grandinetti v. Grandinetti, 1:14-cv-00393 SOM/BMK; psa 2014 Recon 14-393 som (R52(b)
after NOA; J:\PSA Draft Ords\SOM\Grandinetti 14-393 som (R52(b) after NOA).wpd
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