Dela Cruz et al v. HSBC Bank USA, National Association et al

Filing 37

ORDER that 33 Motion for 54(b) Certification is DENIED. FURTHER ORDERED that Plaintiffs are to re-file any Rule 41 notices or motions with this Court after resolution of Plaintiffs' appeal before the Ninth Circuit. Signed by Judge Miranda M. Du on 5/6/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CECILIA DELA CRUZ and HEROHITO
DELA CRUZ,

Case No. 2:12-cv-01283-MMD-PAL
ORDER

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Plaintiffs,
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v.
HSBC BANK USA, N.A., et al.,

(Plf.’s Motion for Certification – dkt. no. 33;
Plf.’s Notice of Voluntary Dismissal
– dkt. no. 35)

Defendants.

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Before this Court are Plaintiffs Cecilia Dela Cruz and Herohito Dela Cruz’s Motion
for 54(b) Certification (dkt. no. 33) and Notice of Voluntary Dismissal (dkt. no. 35).

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This case arises out of a foreclosure proceeding initiated on Plaintiffs’ home. The

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factual background is summarized in the Court’s April 23, 2013 Amended Order. (See

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dkt. no. 36.) After the Court dismissed with prejudice all claims against Defendants, with

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the exception of those that are subject to an automatic bankruptcy stay, Plaintiffs filed a

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Notice of Appeal seeking review of the Court’s dismissal. (See dkt. no. 31.) On March

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6, 2013, the Clerk of the Ninth Circuit issued an order to show cause as to why the

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appeal should not be dismissed for lack of jurisdiction, noting that the Court’s dismissal

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order did not dispose of the action as to all claims and all parties. (See dkt. no. 34-1.)

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Thereafter, Plaintiffs filed a motion seeking judgment under Fed. R. Civ. P. 54(b),

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presumably to allow them to appeal. (See dkt. no. 33.)

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appeal “confer[red] jurisdiction on the court of appeals and divest[ed this Court] of

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control over those aspects of the case involved in the appeal.” Griggs v. Provident

Nevertheless, the notice of

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Consumer Discount Co., 459 U.S. 56, 58 (1982). As the appeal has yet to conclude, the

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Court is without jurisdiction to entertain Plaintiffs’ Motion.

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Similarly, the Court is without jurisdiction to review Plaintiffs’ Notice of Voluntary

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Dismissal. (See dkt. no. 35.) Although Plaintiffs seek to voluntarily dismiss Defendant

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GMAC Mortgage, LLC (“GMAC”) without court order, which is permitted by Fed. R. Civ.

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P. 41(a)(1), this Court lacks jurisdiction over Plaintiffs’ claims against GMAC until the

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termination of Plaintiffs’ appeal.

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Accordingly, IT IS HEREBY ORDERED that Plaintiffs Cecilia Dela Cruz and
Herohito Dela Cruz’s Motion for 54(b) Certification (dkt. no. 33) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs are to re-file any Rule 41 notices or
motions with this Court after resolution of Plaintiffs’ appeal before the Ninth Circuit.
ENTERED THIS 6th day of May 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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