Zain v. Advance Health Care Provider et al

Filing 42

MEMORANDUM AND OPINION by Chief Judge Joseph H. McKinley, Jr on 10/17/13;Deadline for filing a properly supported summary-judgment motion is 30 days from entry of this Order (Motions due by 11/16/2013.) Should Defendant submit amotion for summary jud gment, Plaintiff may file his response within 21 days of service of the motion. Defendant may file a reply within 14 days of service of the response. If Defendant does not file a motion for summary judgment, this matter will be set for trial. cc:counsel, Plaintiff (pro se) (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
REVEL ZAIN

PLAINTIFF

v.

CIVIL ACTION NO. 4:12-CV-P5-M

ADVANCE HEALTH CARE PROVIDER et al.

DEFENDANTS

MEMORANDUM AND ORDER
On September 16, 2013, this Court entered a Memorandum Opinion and Order granting
in part and denying in part Defendant Blue’s motion for summary judgment. See DN 39. The
denial in part was without prejudice to filing a properly supported motion for summary
judgment.
Plaintiff has filed a notice of appeal from that Order. “As a general rule, a district court
no longer has jurisdiction over an action as soon as a party files a notice of appeal” unless “the
appeal is untimely, presents issues that the appellate court had previously decided in the same
case, or is from a non-final, non-appealable order.” Pittock v. Otis Elevator Co., 8 F.3d 325, 327
(6th Cir. 1993). In this case, the Court has reviewed the notice of appeal filed by Plaintiff
(DN 40) and has concluded that it arises from a non-final, non-appealable order. A notice of
appeal from a plainly non-appealable order may properly be ignored by the district court.
Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir. 1981). Accordingly, while the district court
lacks jurisdiction to outright dismiss the improper appeal, Dickerson v. McClellan, 37 F.3d 251,
252 (6th Cir. 1994), it may nevertheless proceed to adjudicate the merits of the underlying action
as if the improper appeal had not been filed. Cochran, 641 F.2d at 1222.
IT IS THEREFORE ORDERED that the deadline for filing a properly supported
summary-judgment motion is 30 days from entry of this Order. Should Defendant submit a
motion for summary judgment, Plaintiff may file his response within 21 days of service of the

motion. Defendant may file a reply within 14 days of service of the response. If Defendant
does not file a motion for summary judgment, this matter will be set for trial.
Date:

October 17, 2013

cc:

Plaintiff, pro se
Counsel of record
4414.009

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