Ward v. Wolfenbarger
Filing
159
OPINION and ORDER denying 157 Ex Parte Motion for Correction and Issuance of an Amended Opinion and Order. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CHARLES WARD,
Petitioner,
Civil Nos. 03-CV-72701/72858-DT
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
v.
HUGH WOLFENBARGER,
Respondent,
________________________________/
OPINION AND ORDER DENYING THE EX PARTE MOTION FOR
CORRECTION AND ISSUANCE OF AN AMENDED OPINION AND ORDER
On September 11, 2012, this Court granted petitioner’s motion for a
certificate of appealability, his motions to file supplemental pleadings, and denied
his motions for judgment on the pleadings and to strike the affidavit, after the
case had been remanded back to this Court from the United States Court of
Appeals for the Sixth Circuit to reconsider its earlier decision to deny petitioner a
certificate of appealability. Petitioner’s consolidated appeal remains pending
before the Sixth Circuit. See U.S.C.A. Nos. 10-2287/2313 (6th Cir.).
Petitioner has now filed a motion for correction and issuance of an
amended opinion and order, claiming that this Court’s September 11, 2012
opinion contains typographical errors.
F.R.C.P. 60(a) indicates that:
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Ward v. Wolfenbarger, 03-CV-72701/03-72858
Clerical mistakes in judgments, orders or other parts of the record and
errors therein arising from oversight or omission may be corrected by
the court at any time of its own initiative or on the motion of any party
and after such notice, if any, as the court orders. During the pendency
of an appeal, such mistakes may be so corrected before the appeal is
docketed in the appellate court, and thereafter while the appeal is
pending may be so corrected with leave of the appellate court.
A notice of appeal generally “confers jurisdiction on the court of appeals
and divests the district court of control over those aspects of the case involved in
the appeal.” Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S.
373, 379 (1985)(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
58 (1982)( per curiam )); See also Workman v. Tate, 958 F. 2d 164, 167 (6th Cir.
1992). Once appeal has been docketed with Court of Appeals, a district court
must obtain permission from the appellate court before correcting any clerical
errors. See Hartis v. Chicago Title Ins. Co., 694 F. 3d 935, 950 (8th Cir. 2012);
Thomas v. iStar Financial, Inc., 652 F. 3d 141, 151 (2nd Cir. 2011); Zenith
Electronics Corp. v. United States, 884 F. 2d 556, 561 (Fed. Cir. 1989). If
petitioner wishes to correct these alleged clerical errors, he must first seek leave
to do so from the Sixth Circuit pursuant to F.R.A.P. 10(e). See Crumpacker v.
Crumpacker, 516 F. Supp. 292, 297 (N.D. Ind. 1981). Only if that motion is
granted by the Sixth Circuit will this Court have the authority to enter the desired
corrections. Id.
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Ward v. Wolfenbarger, 03-CV-72701/03-72858
Based on the foregoing, the ex parte motion for correction and issuance of
an amended opinion and order [Dkt. # 112 in Case # 03-72858][Dkt. # 157 in
Case # 03-72701] is DENIED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: August 28, 2013
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on August 28, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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