Snyder v. Allison

• Court: District Court, S.D. California
• Decided: January 24, 2020
• Docket: 3:19-cv-01741
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT SNYDER, Case No.: 3:19-cv-01741-LAB-MDD

12 Plaintiff, ORDER DENYING EX PARTE 13 v. APPLICATION FOR CONTINUANCE 14 KATHLEEN ALLISON, et al.,

15 Defendants. [ECF No. 14] 16 17 On December 5, 2019, the Court denied Plaintiff Robert Snyder’s Motion for a 18 Temporary Restraining Order pursuant to Fed. R. Civ. P. 65(b), and simultaneously 19 dismissed his Complaint sua sponte for failing to state a claim pursuant to 28 U.S.C. 20 § 1915A. See ECF No. 9. The Court granted Plaintiff leave to amend and ordered him to 21 do so no later than January 21, 2020. Id. at 9. Instead, on December 20, 2019, Plaintiff filed 22 a Notice of Appeal. See ECF No. 10. His appeal was assigned USCA Case No. 19-56521, 23 and a Time Schedule Order was issued on December 30, 2019. See ECF Nos. 11‒12. Thus, 24 as it stands, Plaintiff’s appeal remains pending in the Ninth Circuit. 25 On January 21, 2020, however, Plaintiff submitted an “Ex Parte Application for 26 Continuance” with the Clerk of this Court. See ECF No. 14. In it, he admits he has “six 27 ongoing cases,” claims “most of [his] time and energy is consumed by custody harassing 28 him,” and acknowledges “[t]his case is currently under review by the 9th Circuit Court of 1 Appeals.” Id. at 2. Therefore, Plaintiff requests the Court “put the matter over until the 2 conclusion of the [a]ppellate proceedings,” because this case involves just “one of the many 3 deadlines [he] is burdened by,”1 and “if the appeal is favorable to [him] [] an amended 4 complaint may be unnecessary.” Id. 5 While a Notice of Appeal typically divests the district court of jurisdiction over the 6 order or action challenged on appeal, dismissal with leave to amend is not usually 7 considered an appealable Order. See e.g., United States v. Garner, 663 F.2d 834, 837 (9th 8 Cir. 1981). But there are rare exceptions. It is also not clear from Plaintiff’s Notice of 9 Appeal whether he is challenging the dismissal of his Complaint, the denial of his TRO, or 10 both. See Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966) (noting that 11 “Where the deficiency in a notice of appeal, by reason of untimeliness, lack of essential 12 recitals, or reference to a non-appealable order, is clear to the district court, it may disregard 13 the purported notice of appeal and proceed with the case, knowing that it has not been 14 deprived of jurisdiction.”). Ordinarily, an appeal from a TRO is also not immediately 15 appealable, see Religious Tech. Ctr. of Church of Scientology Int’l v. Scott, 869 F.3d 1306, 16 1308 (9th Cir. 1989) (citing 28 U.S.C. § 1292(a)(1)), but if the denial of a TRO “effectively 17 decide[s] the merits of the case,” or is tantamount to the denial of a preliminary injunction 18 it can be. Id. (citations omitted). 19 /// 20 21 22 1 The Court notes that even if it retained jurisdiction to consider Plaintiff’s request for an 23 extension of time to comply with the deadline it previously set for amendment, the reasons he has offered in support are unconvincing. See e.g., Forte v. Jones, 2014 WL 7069447, at 24 *3 (E.D. Cal. Dec. 12, 2014) (noting that plaintiff’s “decision to engage in multiple 25 simultaneous lawsuits is a matter of choice and the demands on his time and attention in one action do not constitute an excuse for deadlines missed in another action.”); Haywood 26 v. Bedatsky, 2007 WL 1412523, *5 (D. Ariz. May 11, 2007) (finding extension of time to 27 serve defendants unwarranted because while plaintiff was proceeding pro se, he “[wa]s not a novice litigator,” and “had filed at least three previous lawsuits against many of the[] 28 1 Thus, based on the record before it, the Court is not convinced it retains jurisdiction 2 ||to grant the relief Plaintiff seeks and therefore DENIES his Ex Parte Application for 3 ||Continuance [ECF No. 14] in light of the Notice of Appeal still pending in USCA Case 4 || No. 19-56521. 5 IT IS SO ORDERED. 6 Dated: January 24, 2020 / , / 4 YO 7 Hon. Larry Alan Burns g Chief United States District Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3