Carlisle v. Normand, et al

Filing 296

ORDER AND REASONS: IT IS ORDERED that the two Motions to Strike Plaintiffs' Notice of Interlocutory Appeal, one filed by Defendants McNair & McNair, L.L.C. and Joe McNair (Rec. Doc. 236 ) and the other filed by Defendants Joseph Marino and Richard Tompson (Rec. Doc. 247 ) are both DENIED, as set forth in document. Signed by Judge Jane Triche Milazzo on 4/17/2018. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAYLOR CARLISE

CIVIL ACTION

VERSUS

NO: 16-3767

NEWELL NORMAND, ET AL

SECTION: “H”(1)

ORDER AND REASONS
Before the Court are two Motions to Strike Plaintiffs’ Notice of
Interlocutory Appeal, one filed by Defendants McNair & McNair, L.L.C. and
Joe McNair (Doc. 236) and the other filed by Defendants Joseph Marino and
Richard Tompson (Doc. 247). For the following reasons, the Motions are
DENIED.
BACKGROUND
This Court dismissed Plaintiffs’ official-capacity claims under 42 U.S.C.
§ 1983 against Defendants McNair & McNair, L.L.C., Joe McNair, Joseph
Marino, and Richard Tompson. 1 Plaintiffs’ claims for damages were dismissed
pursuant to sovereign immunity. Plaintiffs’ claims for injunctive and

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Doc. 178.

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declaratory relief were dismissed for lack of standing. The Court also dismissed
Plaintiffs’ personal-capacity § 1983 claims against the McNair Defendants
under the doctrine qualified immunity and against Defendants Marino and
Thompson pursuant to Heck v. Humphrey. 2 The Court dismissed personalcapacity claims against other Defendants on judicial immunity grounds. This
Court denied Plaintiffs’ motion for a certificate of appealability as to the
Court’s decisions regarding sovereign, qualified, and judicial immunity. 3
Plaintiffs then filed a Notice of Interlocutory Appeal. 4 Paragraph four of
the Notice seeks an appeal of this Court’s dismissal of Plaintiffs’ claims on
sovereign immunity grounds. Paragraph five seeks an appeal of this Court’s
denial of a certificate of appealability as to sovereign immunity and judicial
immunity.
The McNair Defendants move to strike paragraphs four and five from
Plaintiffs’ Notice of Interlocutory Appeal for the failure to follow appellate
procedural requirements and the failure to obtain a certificate of appealability
from this Court. Defendants Marino and Tompson move to adopt the
arguments of the McNair Defendants.
LAW AND ANALYSIS
“Generally, when an appeal is taken, the district court is divested of
jurisdiction except to take action in aid of the appeal until the case is remanded
to it by the appellate court, or to correct clerical errors under Rule 60(a).” 5

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3
4
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Doc. 178; see also Heck v. Humphrey, 512 U.S. 477 (1994).
See Docs. 191, 231.
Doc. 233.
Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 n.3 (5th Cir. 1994).

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However, an untimely or otherwise defective notice of appeal does not transfer
jurisdiction. 6
Here, the moving Defendants seek to strike only a portion of Plaintiffs’
Notice of Interlocutory Appeal. Even if the issues for appeal set forth in
paragraphs four and five of the Notice were defective, the Notice contains
other, valid issues for appeal. Therefore, at this time the Notice is properly
before the Appellate Court and this Court does not have jurisdiction to alter it.
Accordingly, Defendants’ Motions are DENIED.
CONCLUSION
For the foregoing reasons, Defendants’ Motions are DENIED.

New Orleans, Louisiana this 17th day of April, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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Gilda Indus., Inc. v. United States, 511 F.3d 1348, 1350 (Fed. Cir. 2008).

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