Summary
holding that district court has jurisdiction to consider motion
Summary of this case from Willcox v. StroupOpinion
No. 88-3489.
August 3, 1988.
Edmond G. Miranne, Jr., New Orleans, La., pro se.
Donald A. Meyer, Sushan, Meyer, Jackson, McPherson Herzog, New Orleans, La., for First Financial Bank.
Marc G. Shachat, New Orleans, La., for Bernice Dohm.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before RUBIN, JOHNSON and JONES, Circuit Judges.
The instant motion for a stay pending appeal is before this Court following its denial in the first instance in the district court. In denying appellant's motion, the district court concluded that it lacked the requisite jurisdiction to rule on appellant's request for a stay due to the fact that appellant filed a notice of appeal prior to requesting a stay.
After reviewing the pertinent authorities in this area, we are persuaded that the district court retained jurisdiction to grant appellant's request for a stay despite the fact that a notice of appeal to this Court was filed prior to the request for a stay. See Fed.R.Civ.P. 62; 9 Moore's Federal Practice ¶ 208.05. Such a conclusion is consistent with the general principle that an application for a stay of the judgment or order of a district court should ordinarily be made in the first instance in the district court. Fed.R.App.P. 8(a).
Accordingly, it is hereby ordered that the motion for a stay pending appeal is DENIED without prejudice to the appellant's right again to seek a stay from the district court.