Baines v. The City of New York et al

Filing 215

MEMORANDUM OPINION AND ORDER re: 213 LETTER addressed to Judge Jesse M. Furman from Donnell Baines, dated 9/6/17 re: Plaintiff requests that the Court grant him relief pursuant to Fed.R.Civ.P. Rule 60(b); or that the Court reverse that portion of i ts 8/9/17 Order which deprives Baines of his right to appeal in forma pauperis, or that the Court provide him with reasons pursuant to Fed.R.App.P. Rule 24(3)(A) & (4) for its certification etc. To the extent that Baines seeks reconsideration of the Court's certification, the request is denied. Under normal circumstances, "[w]here a notice of appeal has been filed...the district court is divested of 'control over those aspects of the case involved in the appeal.'" Ho ffenberg v. United States, No. 00-CV-1686 (RWS), 2004 WL 2338144, at *2-3 (S.D.N.Y. Oct. 18, 2004) (quoting Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)). "Where, however, a notice of appeal has been filed from an o rder that is non-appealable, jurisdiction does not rest with the Court of Appeals but remains with the district court." Id. (citing cases). Accordingly, the Court retains jurisdiction over this case in all respects, and all existing dates and deadlines (including the September 29, 2017 deadline to contact the Chambers of Magistrate Judge Cott to schedule a settlement conference as soon as possible (Opinion at 8) remain in effect. The Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith (for the same reasons), and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a copy of this Order to Plaintiff, and as further set forth herein. (Signed by Judge Jesse M. Furman on 9/26/2017) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DONNELL BAINES,
:
:
Plaintiff,
:
:
-v:
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THE CITY OF NEW YORK, et al.,
:
:
Defendants.
:
:
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09/26/2017
10-CV-9545 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
On August 9, 2017, the Court entered a Memorandum Opinion and Order granting in part
and denying in part Defendants’ motion for summary judgment. (Docket No. 211 (“Opinion”)).
In closing, the Court “certifie[d] that any appeal” from the Opinion and Order “would not be
taken in good faith,” and thus denied Pro Se Plaintiff Donnell Baines in forma pauperis status.
(Id. at 8). In a letter docketed on September 19, 2017, Baines takes issue with that certification,
requesting either reconsideration of the Court’s decision or an explanation of the Court’s reasons
and noting that he has filed a notice of appeal from the Opinion. (Docket No. 213). The same
day, Baines’s notice of appeal was itself docketed. (Docket No. 214).
To the extent that Baines seeks reconsideration of the Court’s certification, the request is
denied. Among other things, because some of Baines’s claims are still pending, “and because
the Court has neither directed the entry of a final judgment pursuant to Rule 54(b) [of the Federal
Rules of Civil Procedure] nor certified its Order for interlocutory appeal pursuant [28 U.S.C.]
§ 1292(b),” the Court’s August 9, 2017 Opinion and Order “is not a ‘final judgment’ for
purposes of establishing appellate jurisdiction.” Evans v. Boyd Rest. Grp., LLC, No. 1:04-CV-

1144-RWS, 2008 WL 11333610, at *2 (N.D. Ga. Aug. 25, 2008). “Any appeal from that Order
would therefore be frivolous.” Id.; accord Earle v. United States, No. CIV. 07-30-GFVT, 2008
WL 2937228, at *2 (E.D. Ky. July 29, 2008) (Report and Recommendation) (“Because there is
no legal basis for appellate jurisdiction pending final judgment, the Plaintiff's motion to proceed
in forma pauperis should be denied . . . .”).
Relatedly, the Court notes that it retains jurisdiction notwithstanding Baines’s filing of a
notice of appeal. Under normal circumstances, “[w]here a notice of appeal has been filed . . . the
district court is divested of ‘control over those aspects of the case involved in the appeal.’”
Hoffenberg v. United States, No. 00-CV-1686 (RWS), 2004 WL 2338144, at *2-3 (S.D.N.Y.
Oct. 18, 2004) (quoting Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 379
(1985)). “Where, however, a notice of appeal has been filed from an order that is nonappealable, jurisdiction does not rest with the Court of Appeals but remains with the district
court.” Id. (citing cases). Accordingly, the Court retains jurisdiction over this case in all
respects, and all existing dates and deadlines (including the September 29, 2017 deadline to
contact the Chambers of Magistrate Judge Cott to schedule a settlement conference as soon
as possible (Opinion at 8) remain in effect.
The Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any
appeal from this Order would not be taken in good faith (for the same reasons), and in forma
pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this Order to Plaintiff.

SO ORDERED.
Dated: September 26, 2017
New York, New York
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