Huff v. United States of America

Filing 52

ORDER Denying Plaintiff's 51 Motion to Reopen Case. Signed by Judge Jennifer A. Dorsey on 12/4/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Keith Hoff,
Plaintiff

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v.
United States, et al.,

Case No.: 2:12-cv-00235-JAD-PAL
Order Denying
Motion to Reopen [Doc. 51]

Defendants

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Before the Court is Plaintiff Keith Hoff’s civil rights action against the United States, United

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States District Court, and his former attorney Patrick E. Marshall. This Court entered final judgment

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on August 23, 2013, when it dismissed the instant case with prejudice. Doc. 44. Hoff’s Notice of

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Appeal was entered September 13, 2013. Doc. 46. On October 3, 2013, this Court certified pursuant

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to 28 U.S.C. § 1915(a)(3) that any appeal taken from its August 23, 2013, order would be frivolous and

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therefore not taken in good faith. Doc. 49. Hoff filed a document entitled “Motion to Reopen the Case”

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on October 21, 2013, Doc. 51, and the Court now carefully considers this motion in light of applicable

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statutory and case law.

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“The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction

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on the court of appeals and divests the district court of its control over those aspects of the case involved

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in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (citation omitted); see

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also Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001) (writing that “[w]hen a notice of

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appeal is filed, jurisdiction over the matters being appealed normally transfers from the district court

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to the appeals court.”). Hoff brought his Motion to Reopen Case, which the Court liberally construes

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as a motion to reconsider under both Federal Rule of Civil Procedure 59 and FRCP 60(b), thirty-eight

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days after he filed his Notice of Appeal. See Doc. 46; Doc 51. See also Erickson v. Pardus, 551 U.S.

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89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (writing that pro se documents are

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“to be liberally construed”). “Accordingly, [the] motion to reconsider must be denied as this court was

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divested of its jurisdiction to consider matters presented by the [moving party] upon the filing of his

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Notice of Appeal.” United States v. Salzano, 994 F. Supp. 1321, 1322 (D. Kan. 1998) (footnote omitted).

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Even if Hoff had filed the instant motion before filing his Notice of Appeal, this Court could not

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grant the relief sought because the motion was untimely. Under Federal Rule of Appellate Procedure

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4(a)(4), district courts retain jurisdiction over (1) motions to alter or amend judgment under FRCP 59

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and (2) motions to reconsider under FRCP 60, when these motions are timely brought before the

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appellate court gains jurisdiction. Miller v. Marriott Int’l, Inc., 300 F.3d 1061, 1063, 1065 (9th Cir.

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2002).

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FRCP 59(e) requires that “[a] motion to alter or amend a judgment must be filed no later than

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28 days after the entry of the judgment.” When a motion is not timely brought within the requirements

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of Rule 59(e), “[t]he district court d[oes] not have jurisdiction to rule on [the] motion for

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reconsideration.” See Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir. 1984) (applying Rule 59(e)

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which, prior to the 2009 amendment, established a ten-day requirement when parties moved for

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reconsideration). This Court entered judgment when it dismissed Hoff’s action with prejudice on

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August 23, 2013. Doc. 44. Hoff filed his Motion to Reopen Case on October 21, 2013, fifty-nine days

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after the entry of judgment. Doc. 51. He filed thirty-one days late, which translates into a full month

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after the deadline. Accordingly, this Court lacks jurisdiction to consider his motion under Rule 59.

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Rule 60(b) establishes the same timeframe for bringing a motion in district court. “[A] notice

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of appeal filed after the district court announces judgment is not effective until the district court has

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disposed of all Rule 60(b) motions filed” within the required time after “entry of the order dismissing

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the case.” Miller, 300 F.3d at 1063–64. District courts can consider granting “relief under Rule 60 if

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the motion is filed no later than 28 days after the judgment is entered.” FED. R. APP. P. 4. Under FRAP

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4(a)(4) and FRCP 60(b), Hoff was thirty-one days late in bringing this motion. The relief requested is

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therefore barred by Hoff’s decision to file a Notice of Appeal and by his untimeliness in seeking

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reconsideration at the district level.

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Motions for reconsideration are not expressly authorized in the Federal Rules of Civil Procedure,

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but district courts may grant them under Rule 59(e). See Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS,

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Inc., 179 F.3d 656, 665 (9th Cir. 1999). Reconsideration is only warranted when: (1) the movant

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presents newly discovered evidence, (2) the district court committed clear error or the initial ruling was

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manifestly unjust, or (3) there is an intervening change in controlling law. Id. (citing All Haw. Tours,

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Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648 (D. Haw. 1987)). Although reconsideration may

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also be warranted under other highly unusual circumstances, it is well recognized as an “extraordinary

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remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Carroll

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v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2007) (quoting 12 James Wm. Moore et al., Moore’s Federal

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Practice § 59.30[4] (3d ed. 2000)). Hoff does not even reference this standard in his filing, let along

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make any effort to demonstrate the existence of new evidence, clear error or manifest injustice, or

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intervening change in law upon which the order dismissing his case should be set aside.

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Accordingly, and for the reasons set forth above,

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IT HEREBY ORDERED that Plaintiff’s Motion to Reopen [Doc. 51] is DENIED.

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DATED December 4, 2013.

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_________________________________
Jennifer A. Dorsey
United States District Judge