Leavitt v. Wickham et al
Filing
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ORDER that the Court certifies to the Court of Appeals that the appeal is not taken in good faith. Signed by Judge Gloria M. Navarro on 5/21/2013. (Copies have been distributed pursuant to the NEF - cc: Court of Appeals - SLD)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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CODY LEAVITT,
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Plaintiff,
2:13-cv-00490-GMN-CWH
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vs.
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ORDER
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HAROLD WICKHAM, et al.,
Defendants.
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This prison civil rights matter comes before the Court following upon plaintiff’s filing of
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a notice of appeal (#14). Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies to the Court
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of Appeals that the appeal is not taken in good faith, because the appeal challenging the prior
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judgment was constructively filed after plaintiff filed a Rule 59 motion and before that motion
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was ruled upon, rendering the notice of appeal a nullity.
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On April 2, 2013, the Court entered an order and judgment (## 2 & 3) dismissing the
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improperly commenced action without prejudice, noting no adverse statute of limitations
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consequences from the dismissal. Plaintiff constructively filed (i.e., mailed for filing) an
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emergency motion to reopen the matter on April 8, 2013. In an April 23, 2013, order (#6) the
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Court granted petitioner’s emergency motion to reopen the case, vacated the judgment of
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dismissal, and reopened the matter.
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The notice of appeal (#14) is dated April 22, 2013, and thus presumptively was
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constructively filed on that date. As of April 22, 2013, plaintiff had filed a Rule 59 motion
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which then still was pending on the district court’s docket. Plaintiff apparently sent the notice
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first to the Clerk of Court for the Court of Appeals, who forwarded the notice to this Court’s
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Clerk. Plaintiff sought in the notice of appeal to appeal the since-vacated April 2, 2013,
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dismissal.
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With deference to the final authority of the Court of Appeals in matters relating to its
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own jurisdiction, the notice of appeal would appear to be a nullity because it was
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constructively filed while a timely Rule 59 motion was pending. See,e.g., Munden v. Ultra-
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Alaska Assoc., 849 F.2d 383, 386 (9th Cir. 1988); see generally 11 C. Wright, A. Miller, M.
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Kane, et al., Federal Practice & Procedure: Civil § 2821, at n. 1 (2013). Plaintiff’s motion
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(#11) to clarify the notice of appeal does not assert any specific request for relief that would
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lead to a contrary conclusion. In all events, the dismissal has been vacated on a timely Rule
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59 motion that was filed prior to the appeal, and all other requests for relief would appear to
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present interlocutory matters that are not subject to appeal without entry of a final judgment.
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It thus would appear that the appeal would be dismissed in the case of a non-indigent litigant.
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IT IS THEREFORE ORDERED, pursuant to 28 U.S.C. § 1915(a)(3), that the Court
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certifies to the Court of Appeals that the appeal is not taken in good faith.
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IT IS FURTHER ORDERED, so that the certification herein shall be clearly marked on
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the docket for review by the Court of Appeals, that the Clerk of this Court shall docket this
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order on the docket sheet as an order that certifies to the Court of Appeals that the appeal
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is not taken in good faith and shall forward same to the Ninth Circuit in a manner consistent
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with the Clerk’s current practice, in connection with No. 13-15938 in the Court of Appeals.
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DATED this 21st day of May, 2013.
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___________________________________
Gloria M. Navarro
United States District Judge
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