Tunne v. Paducah Police Department et al

Filing 93

MEMORANDUM OPINION & ORDER denying 87 Motion for Reconsideration. Signed by Judge Joseph H. McKinley, Jr on 07/18/2011. cc: counsel, plaintiff (CSD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:08-CV-00188-JHM
MARK TUNNE

PLAINTIFF

V.
PADUCAH POLICE DEPT., et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Mark Tunne’s Motion to Reconsider [DN 87].
While the Court has received the Plaintiff’s memorandum and the Defendants’ response, no reply
in this matter has been filed. As the deadline for a reply has come and gone, the Court finds that the
matter is ripe for decision. For the following reasons, Plaintiff’s motion to reconsider is DENIED.

I. DISCUSSION
Plaintiff has asked the court to reconsider its denial of his motion for summary judgment and
its grant of Defendants’ motion to dismiss. Defendants have responded asserting that the Court no
longer has jurisdiction over this matter.
On May 23, 2011, Plaintiff filed a notice of appeal with this Court [DN 85]. On June 3,
2011, the Plaintiff’s appeal was docketed with the Sixth Circuit Court of Appeals. Fed. R. Civ. P.
60 is the rule governing relief from a judgment or order. Rule 60(a) states that a district court may
correct clerical mistakes, oversights and omissions, on motion by the parties or on its own. Fed. R.
Civ. P. 60(a). “But after an appeal has been docketed in the appellate court and while it is pending,
such a mistake may be corrected only with the appellate court's leave.” Id. Rule 60(b) states that
a district court may relieve a party from a final judgment for mistake, newly discovered evidence,

and fraud among other things. Fed. R. Civ. P. 60(b).
“Although Rule 60(a) specifically addresses the issue of the district court's jurisdiction over
an action while an appeal is pending, Rule 60(b) is silent on the issue. As a general rule, the district
court loses jurisdiction over an action once a party files a notice of appeal, and jurisdiction transfers
to the appellate court.” Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993) (internal citations
omitted). However, the Sixth Circuit “‘has consistently held that a district court retains jurisdiction
to proceed with matters that are in aid of the appeal.’” Id. (quoting Cochran v. Birkel, 651 F.2d
1219, 1221 (6th Cir. 1981)). Whether a Rule 60(b) motion would aid in an appeal requires that the
district court make a tentative ruling upon the proposed motion. Cochran, 651 F.2d at 1221 n.5;
First Nat’l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976). “If the district judge
is disposed to grant the motion, he may enter an order so indicating and the party may then file a
motion to remand in this court. Otherwise, the appeal will be considered in regular course.” First
Nat’l Bank, 535 F.2d at 346.
Plaintiff’s motion to reconsider does not specify whether it is seeking reconsideration under
Rule 60(a) or (b). Plaintiff has filed an appeal with the Sixth Circuit, which clearly divests the Court
of jurisdiction under Rule 60(a). Furthermore, having reviewed Plaintiff’s motion, the Court is not
disposed to granting the motion to reconsider. Therefore, a determination of the matter would not
aid in the appeal as set out in Cochran and First National Bank. Regardless of the section invoked,
the Court finds that it does not have jurisdiction to hear this matter.

II. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff Mark Tunne’s

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Motion to Reconsider [DN 87] is DENIED.

July 18, 2011

cc: counsel of record
Mark Tunne, pro se

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