Rosenbaum v. Bank of America NA

Opinion

1 WO 2 3 4 5

9 Levi Rosenbaum, No. CV-22-02072-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Bank of America NA, et al.,

13 Defendants. 14 15 Pending before the Court is Levi Rosenbaum’s (“Plaintiff”) Motion to Reconsider 16 and Set Aside Judgment, which the Court construes as a Motion to Alter or Amend 17 Judgment under Federal Rule of Civil Procedure 59(e) or, alternatively, as a Motion for 18 Relief from the Judgment under Federal Rule of Civil Procedure 60.1 (Doc. 86). Also 19 pending before the Court is Plaintiff’s Motion for Leave to Appeal. (Doc. 88). Defendants 20 filed a Response addressing both motions. (Doc. 91). 21 I. Analysis 22 a. “Motion to Reconsider and Set Aside Judgment” 23 “The filing of a notice of appeal is an event of jurisdictional significance—it confers 24 jurisdiction on the court of appeals and divests the district court of its control over those 25 aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 26 U.S. 56, 58 (1982). Thus, because Plaintiff filed a notice of appeal, (Doc. 87), this Court

27 1 Plaintiff fails to allege any legal basis for his Motion to Reconsider and Set Aside Judgment. (Doc. 86). Nonetheless, in “continu[ing] to construe pro se filings liberally,” the 28 Court will still analyze the Motion under Federal Rules of Civil Procedure 59(e) and 60(b). Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 1 does not have jurisdiction over the motion. There are two relevant exceptions, as analyzed 2 below. 3 i. Rule 59(e) 4 A notice of appeal is ineffective if it is filed while a Federal Rule of Civil Procedure 5 59(e) motion is pending. Osterneck v. Ernst & Whinney, 489 U.S. 169, 177 (1989); see 6 also Banister v. Davis, 590 U.S. 504, 508 (2020) (quoting FCC v. League of Women Voters 7 of Cal., 468 U.S. 364, 373, n. 10 (1984)) (“The filing of a Rule 59(e) motion within the 28- 8 day period ‘suspends the finality of the original judgment’ for purposes of an appeal . . . 9 [such that] there is no longer a final judgment to appeal from.”). Under Rule 59(e), “[a] 10 motion to alter or amend a judgment must be filed no later than 28 days after the entry of 11 the judgment.” Fed. R. Civ. P. 59(e) (emphasis added). Courts cannot “extend the time to 12 act” under Rule 59(e). Fed. R. Civ. P. 6(b)(2). 13 Here, Plaintiff did not file the motion within the requisite 28-day period. The Court 14 entered judgment on September 12, 2024. (Doc. 82). Plaintiff filed this motion on October 15 12, 2024, 30 days after the Court entered judgment. Thus, the motion is untimely, the notice 16 of appeal is effective, and the Court does not have jurisdiction over this motion. 17 ii. Rule 60 18 If a party files a notice of appeal and files “for relief under Rule 60 . . . within the 19 time allowed for filing a motion under Rule 59,” the notice of appeal becomes effective 20 after the court rules on the pending motion under Rule 60. FRAP Rule 4(a)(4)(A)(vi), 21 4(a)(B)(i). 22 Here, Plaintiff filed a notice of appeal (Doc. 87) and filed for relief under Rule 60 23 in the pending motion. (Doc. 86). However, as discussed above, this motion was not filed 24 within the time allowed for filing a motion under Rule 59 because it was filed 30 days after 25 the entry of judgment. Thus, the notice of appeal is effective now. Because the notice of 26 appeal is effective, this Court does not have jurisdiction over the motion. While the Court 27 recognizes it must “construe pro se filings liberally,” because the Court does not have 28 jurisdiction over this motion, the Court will not alternatively consider the motion on the |} merits under Rule 60(a) or Rule 60(b). Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 2 b. “Motion for Leave to Appeal” 3 Aside from the first sentence, which asks the Court to “remedy the ruling with [the] 4|| set aside judgment motion [or] if that is not granted, [grant] leave of appeal,” this motion 5 || is identical to Plaintiff's Notice of Appeal. (Compare Doc. 87 (notice of appeal) with Doc. 6 || 88 (pending motion)). The Court sees no legal basis for this redundant motion and will deny it without prejudice. 8 Il. Conclusion 9 Accordingly, 10 IT IS ORDERED that Plaintiff's Motion to Reconsider and Set Aside Judgment (oc. 86) is denied without prejudice for lack of jurisdiction.” 12 IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Appeal (Doc. 13 || 88) is denied without prejudice. 14 Dated this 13th day of November, 2024. 15 16 i C 17 James A. Teilborg 18 Senior United States District Judge 19 20 21 22 23 24 25 26 27 > See Fed. R. Civ. P. 62.1(a)(2) (“If a timely [Rule 60] motion is made for relief that the 28] court lacks authority to grant because of an appeal that has been docketed and is pending, the court may .. . deny the motion”). -3-