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holding that district court properly determined that it lacked jurisdiction to consider plaintiff's motion for leave to amend complaint because plaintiff filed that motion after filing a notice of appeal
Summary of this case from Lenk v. Monolithic Power Sys., Inc.Opinion
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the District of Arizona. D.C. No. 2:11-cv-00928-FJM. Frederick J. Martone, District Judge, Presiding.
MAX M. HOBSON, Plaintiff - Appellant, Pro se, Wickenburg, AZ.
For SAFEWAY INCORPORATED, STEVE A. BURD, President and CEO, CHAD GEPHART, Current General Manager Store #1584, LOUANN MCLURE, Current Assistant Manager Store #1584, DUSTIN DAVIS, Former General Manager Store #1584, CINDY DENINGTON, Officer Manager/Secretary Store #1584, KRIS ASHBY, Front End Manager Store #1584, PAULA REYNOLDS, Office Cclerk Store #1584, SALLY BASHAM, Deli Clerk Store #1584, MALISSA FAY, Back Door Receiver Store #1584, VANESSA ESPINOZA, (P.I.C.) Person in Charge Store #1584, Defendants - Appellees: Mark Ogden, Attorney, Peter Prynkiewicz, Esquire, Attorney, Littler Mendelson, PC, Phoenix, AZ.
For LOCAL 99 UNITED FOOD AND COMMERCIAL WORKERS UNION, named as UFCW 99 Union, JAMES MCLAUGHLIN, President, JACOB SEDILLO, Grievance Director, CLAYTON REESE, Current Union Rep, WES YOUNG, Former Union Rep, FRED YAMASHITA, Former Union Rep, EARL FROCHLICH, Fromer Union Rep, Defendants - Appellees: Elizabeth Ann Lawrence, Esquire, Attorney, DAVIS COWELL & BOWE, LLP, San Francisco, CA.
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Max M. Hobson appeals pro se from the district court's judgment in his employment action arising from his termination. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The record does not show that Hobson properly served defendant Burd. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (" A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4." ). Thus, Hobson was not entitled to entry of default.
We lack jurisdiction to consider the district court's post-judgment order denying Hobson's motion for leave to file an amended complaint because Hobson failed to file an amended or separate notice of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007) (appellant generally must file a separate notice of appeal or amend a previously filed notice of appeal to secure review of a post-judgment order). Moreover, the district court properly determined that it lacked jurisdiction to consider Hobson's motion because Hobson filed it after he filed his notice of appeal. See Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982) (noting that " [t]he filing of a notice of appeal generally divests the district court of jurisdiction over the matters appealed," and holding that district court lacked jurisdiction to consider motion for leave to file an amended complaint that was filed after notice of appeal). We reject Hobson's contentions regarding whether defendants Gephart and McClure properly joined the motion to dismiss under Fed.R.Civ.P. 12(c).
We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Hobson's request for nine judges to preside over his case, set forth in his opening brief, is denied.
AFFIRMED.