Thomas-Weisner v. Gipson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JONQUIL THOMAS-WEISNER, Case No.: 3:19-cv-01999-JAH-BGS 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION WITHOUT PREJUDICE 14 CONNIE GIPSON, et al., 15 Defendants. (ECF No. 38). 16 On July 14, 2022, the Court issued an order adopting Magistrate Judge Bernard G. 17 Skomal’s report and recommendation and granting Defendants’ motion to dismiss without 18 leave to amend. (ECF No. 36). On August 18, 2022, Plaintiff Jonquil Thomas-Weisner 19 (“Plaintiff”) filed a motion for reconsideration of the Court’s order. (ECF No. 38). 20 Thereafter, Plaintiff filed a Notice of Appeal from the order adopting the report 21 and recommendation and granting the motion to dismiss. (ECF No. 40). 22 “The filing of a notice of appeal generally divests the district court of jurisdiction 23 over the matters appealed.” Davis v. United States, 667 F. 822, 824 (9th Cir. 1982). A 24 notice of appeal does not divest the district court of jurisdiction if, at the time it was filed, 25 “there was a pending motion for reconsideration.” United Nat'l Ins. Co. v. R&D Latex 26 Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (citing Fed. R. App. P. 4(a)(4)(B)(i)). 27 Specifically, under Federal Rule of Appellate Procedure 4(a)(4)(B)(i), a notice of appeal 28 does not become effective, and the district court does not lose jurisdiction, until the district 1 court rules on all motions for reconsideration filed no later than twenty-eight days after 2 judgment is entered. Fed. R. App. P. 4(a)(4)(B)(i); see also Miller v. Marriott Int'l., Inc., 3 300 F.3d 1061, 1063–64 (9th Cir. 2002); Fed. R. App. P. 4(a)(4)(A)(vi) (to toll time to 4 appeal, motion under Fed. R. Civ. P. 60 must be filed “no later than 28 days after the 5 judgment is entered”). 6 Here, Plaintiff constructively1 filed a Motion for Reconsideration on August 14, 7 2022, [ECF No. 38], and filed a Notice of Appeal on August 31, 2022, [ECF No. 38]. As 8 such, Plaintiff’s motion for reconsideration was filed thirty days after the Court entered 9 judgment in this matter. Because Plaintiff’s motion was not “pending” under Rule 10 4(a)(4)(B)(i) when Plaintiff filed a Notice of Appeal, this Court is divested of jurisdiction 11 to rule on the pending motion for reconsideration. Accordingly, the motion for 12 reconsideration is denied without prejudice. 13 IT IS SO ORDERED. 14 DATED: September 27, 2022 15 16 _________________________________ JOHN A. HOUSTON 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25

26 27 1 Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 28