Opinion
Civil Action No. 6: 09-257-DCR.
November 19, 2009
MEMORANDUM ORDER
This matter is pending for consideration of pro se Plaintiff Gregory Davis' motion to compel discovery [Record No. 14]. For the reasons that follow, the Plaintiff's motion will be denied.
In essence, Davis alleges that Defendant Mark David Goss violated his Sixth Amendment right to effective assistance of counsel by failing to disclose during a criminal proceeding that Goss was appointed by the federal court and paid by the federal government in connection with the representation. [Record No. 1; Complaint] As discussed in the Memorandum Opinion and Order entered August 18, 2009, removal of Davis' Complaint to this forum was appropriate because Davis asserted federal constitutional claims sufficient to invoke this Court's jurisdiction. Following that determination, Davis filed an improper, interlocutory appeal with the Sixth Circuit. While that appeal was pending, Davis submitted his First Set of Interrogatories to the Defendant. [Record No. 13]
On November 10, 2009, the United States Court of Appeals for the Sixth Circuit dismissed Davis' appeal, noting that this Court's order was not immediately appealable. [Record No. 15] The day before the Sixth Circuit dismissed his interlocutory appeal, Davis filed a motion to compel discovery. Defendant Goss has now filed a motion for extension of time to complete discovery. [Record No. 17]
In his motion to compel, Davis asked this Court to direct Goss to respond to interrogatories he propounded one month earlier while his appeal was pending before the Sixth Circuit. However, a notice of appeal normally will divest the district court of jurisdiction. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400 (1982); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993); Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992). As a result, the Court concludes that Defendant Goss should not be compelled to take any action with respect to matters filed herein while the appeal was pending. Accordingly, it is hereby
ORDERED as follows:
1. Plaintiff Gregory Davis' motion to compel [Record No. 14] is DENIED.
2. The interrogatories previously filed on September 10, 2009, shall be deemed as filed this date. The Defendant shall have the time allowed by the Federal Rules of Civil Procedure to respond to the Plaintiff's interrogatories.
3 Defendant Mark David Goss' motion for an extension of time to respond to the Plaintiff's interrogatories [Record No. 17] is DENIED as MOOT.