United States of America v. Stanley

Filing 91

ORDER ADVISING PARTIES THAT THE COURT WILL RETAIN JURISDICTION OVER THIS CASE UNLESS DIRECTED OTHERWISE BY THE FIFTH CIRCUIT COURT OF APPEALS. Signed by Honorable David C. Bramlette, III on 7/16/2013 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
UNITED STATES OF AMERICA
VS.

PLAINTIFF
CIVIL ACTION NO. 5:11-cv-117(DCB)(MTP)

MARKUS BRENT STANLEY

DEFENDANT
ORDER

This cause is before the Court sua sponte in light of the
defendant’s notice of appeal and intent to seek emergency stay.
See docket entry 87.
On July 10, 2013, this Court entered an Opinion and Order
addressing several motions filed by the defendant.
entry 85.

See docket

On July 11, the defendant filed a motion to stay and

application for a certificate of appealability for the purpose of
filing an interlocutory appeal from the Court’s Opinion and Order.
See docket entries 86 and 87.

The defendant failed to identify an

appropriate ground on which the Court could properly certify the
Opinion and Order for interlocutory appeal, and in fact failed to
mention a single issue for which he sought certification.

Three

factors must be considered in deciding if an order qualifies for
interlocutory appeal: (1) whether a “controlling question of law”
is at issue; (2) whether there is a “substantial ground for
difference of opinion”; and (3) whether an appeal from the order
“may

materially

advance

the

ultimate

termination

of

the

litigation.” 28 U.S.C.A. § 1292(b). The defendant did not address
any of these factors in his motion to appeal and for stay.

The

Court therefore denied the motions.

See docket entries 88 and 89.

The defendant now seeks to appeal the July 10, 2013, Opinion
and Order.

As a general rule, once a notice of appeal is filed,

jurisdiction is no longer vested in the district court.

Griggs v.

Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).
are, however, exceptions to this general rule.

There

One is that “a

premature notice of appeal does not divest the district court of
jurisdiction.”
Cir. 1989).

Mondrow v. Fountain House, 867 F.2d 798, 800 (3rd

If the notice of appeal is clearly premature, the

district court should continue to exercise its jurisdiction in
order to avoid delay at the trial level.

Id.

“[A]ppeals may only be taken from final decisions, subject to
certain exceptions carefully enunciated in the statutes, court
rules, and cases construing them.”

Miller v. Brown, 2013 WL

1346710, *1 n.1 (S.D. Ga. April 3, 2013)(citing 28 U.S.C. §§ 12911292; Fed.R.Civ.P. 54). Since the July 10, 2013, Opinion and Order
was not a final, appealable decision, the defendant’s notice of
appeal is premature and “does not divest the district court of
jurisdiction over the case.”

United States v. Kapelushnik, 306

F.3d 1090, 1094 (11th Cir. 2002).
This

Court

proceedings.

therefore

retains

jurisdiction

over

these

This case will proceed according to the pretrial and

trial schedule despite the notice of appeal.

The Court’s decision

to go forward is not, however, in any way in derogation of the

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jurisdiction of the Fifth Circuit Court of Appeals, and does not
impinge on the ability of the Court of Appeals to consider the
issue de novo.

See Conklin v. Anthou, 2011 WL 2651864, *7 and n.5

(M.D. Pa. June 16, 2011)(citing United States v. Leppo, 634 F.2d
101, 105 (3rd Cir. 1980); 28 U.S.C. § 1651 (providing for petition
for writ of mandamus or prohibition); Fed.R.App.P. 8 (providing for
motion to stay proceedings pending appeal)).
Accordingly,
IT IS HEREBY ORDERED that this case will proceed according to
schedule unless directed otherwise by the Court of Appeals.

The

parties are expected to comply with all orders and deadlines issued
by the Court.
SO ORDERED, this the 16th day of July, 2013.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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