Brown v. Warden, Warren Correctional Institution

Filing 95

ORDER denying 94 Motion for Default Judgment. Because the appeal is still pending, the Motion is DENIED. Signed by Judge Thomas M. Rose on 9-19-2018. (de)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEFFREY ANTONIO BROWN,
Petitioner,

:

- vs -

Case No. 3:17-cv-080
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHAE HARRIS, Warden,
Warren Correctional Institution
:
Respondent.

ORDER DENYING MOTION FOR DEFAULT JUDGMENT

This habeas corpus case is before the Court on Petitioner’s Motion for Default Judgment
(ECF No. 94). However, the case is also pending before the Sixth Circuit on Petitioner’s appeal
from the final judgment in this case (6th Cir. Case No. 18-3722).
The filing of a timely and sufficient notice of appeal immediately transfers jurisdiction of
all matters relating to the appeal from the district court to the court of appeals. It divests the district
court of authority to proceed further with respect to such matters, except in aid of the appeal, or to
correct clerical mistakes under Fed. R. Civ. P. 60(a) or Rule 36 of the Federal Rules of Criminal
Procedure, or in aid of execution of a judgment that has not been superseded, until the district court
receives the mandate of the court of appeals. 9 Moore's Federal Practice ¶ 203.11 at 3-45 and 346. Filing a notice of appeal divests the District Court of jurisdiction over a case and vests
jurisdiction in the Circuit Court of Appeals until the district court receives the mandate of the court
of appeals. Marrese v. American Academy of Osteopathic Surgeons, 470 U.S. 373 (1985); Pickens
v. Howes, 549 F.3d 377, 381 (6th Cir. 2008); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir.
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1993); Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993); Cochran v. Birkel, 651 F.2d 1219,
1221 (6th Cir. 1981).
Because the appeal is still pending, the Motion for Default Judgment is DENIED.

September 19, 2018.

*s/Thomas M. Rose
_____________________________
Thomas M. Rose
United States District Judge

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