Baker v. Wal-Mart Stores East, LP

Opinion

United States District Court for the Southern District of Georgia Brunswick Division

TERRY BAKER and CALVIN BAKER, Plaintiffs, v. CV 220-082 WAL-MART STORES EAST, LP, Defendant.

ORDER Before the Court is Defendant Wal-Mart Stores, East, LP’s motion to dismiss Plaintiffs Terry and Calvin Baker’s Notice of Appeal as untimely. Dkt. No. 29. Defendant argues Plaintiffs’ Notice of Appeal was filed outside the thirty-day window allowed by Federal Rule of Appellate Procedure 4(a)(1)(A). The Court granted Defendant’s motion for judgment on the pleadings on January 5, 2021 and entered judgment on the same day. Dkt. Nos. 23 and 24. Plaintiffs filed a notice of appeal on February 5, 2021. Dkt. No. 27. “[U]pon filing an appeal ‘[t]he district court is divested of jurisdiction to take any action with regard to the matter

except in aid of the appeal.’” Shewchun v. United States, 797 F.2d 941, 942 (11th Cir. 1986) (quoting United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979)). Accordingly, the Court concludes that Defendant’s motion to dismiss would be more properly filed in the Court of Appeals. See, e.g., Pettway v. Mobile Cty. Revenue Comm'r, No. 18-10933-A, 2018 WL 2974413, at *1 (11th Cir. May 11, 2018) (granting motion to dismiss appeal

as untimely because the notice of appeal was filed outside the thirty-day window allowed by Fed. R. App. P. 4(a)(1)(A)). SO ORDERED, this 19th day of February, 2021.

HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA