TINKHAM et al v. PERRY et al

Filing 99

ORDER REGARDING PLAINTIFFS JUNE 17, 2013 NOTICE OF APPEAL By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
District of Maine
PETER TINKHAM et al.,
Plaintiffs
v.
LAURA PERRY et al.,
Defendants

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No. 1:12-cv-00229-GZS

ORDER REGARDING PLAINTIFFS’ JUNE 17, 2013 NOTICE OF APPEAL
A court of appeals may exercise jurisdiction only over final orders, 28 U.S.C. § 1291, and
certain interlocutory and collateral orders not applicable here. See 28 U.S.C. § 1292. A district
court's decision dismissing fewer than all of the defendants in a case where the plaintiff has sued
multiple parties is ordinarily not a final, appealable judgment unless the district court expressly
certifies judgment against the dismissed defendants pursuant to Rule 54(b) of the Federal Rules
of Civil Procedure. Fed. R. Civ. P. 54(b); Barrett ex rel. Estate of Barrett v. U.S., 462 F.3d 28,
32 (1st Cir. 2006). Here, the Court has not directed the entry of final judgment with respect to the
claims against Nina Perry or L. Clinton Boothby, the defendants that were dismissed pursuant to
the Court’s Orders on May 14, 2013 and June 5, 2013 (ECF Nos. 92 & 97), which Plaintiffs have
indicated they wish to appeal. Therefore, these Orders are not appealable final orders and
Plaintiffs’ current attempt to appeal the same does not place this case within the immediate
jurisdiction of the First Circuit. See Fed. R. App. P. 4(a)(2) (“A notice of appeal filed after the
court announces a decision or order--but before the entry of the judgment or order--is treated as
filed on the date of and after the entry.”)
As a result, the Court concludes that it retains jurisdiction over this matter despite
Plaintiff’s June 17, 2013 Notice of Appeal (ECF No. 98). See United States v. Brooks, 145 F.3d
446, 456 (1st Cir. 1998) (“[A] district court can proceed, notwithstanding the filing of an appeal,
if the notice of appeal is defective in some substantial and easily discernible way (if, for
example, it is based on an unappealable order) or if it otherwise constitutes a transparently
frivolous attempt to impede the progress of the case.”) Therefore, the Court will proceed with
the previously scheduled Rule 56H conference on Friday, June 21, 2013 at 9:00 a.m.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 18th day of June, 2013.