Opinion
No. CV-10-8013-PCT-DGC.
January 28, 2011
ORDER
Generally, the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Where, however, a notice of appeal "is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply." Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007). "Where the deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-appealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction." Ruby v. Sec'y of the Navy, 365 F.2d 385, 388-89 (9th Cir. 1996) (emphasis added). Simply put, "[f]iling an appeal from an unappealable decision does not divest the district court of jurisdiction." United States v. Hickey, 580 F.3d 922, 928 (9th Cir. 2009); see Neal v. United States, No. 2:90-CR-00003-PHX-RCB, 2010 WL 1752491, at *2 (D. Ariz. Apr. 29, 2010).
No final judgment has been entered in this case. The order Plaintiff has appealed from (Doc. 51) is not an appealable final order under 28 U.S.C. § 1291. Nor is it an interlocutory order generally appealable under 28 U.S.C. § 1292(a), and the Court has not provided the statement necessary to make the order an interlocutory order appealable under 28 U.S.C. § 1292(b). Because Plaintiff's notice of appeal (Doc. 54) refers to a non-appealable interlocutory order, it does not divest the Court of jurisdiction. Castle v. Eurofresh, Inc., No. CV 09-8114-PCT-MHM (DKD), 2010 WL 1657635, at *1 (D. Ariz. Apr. 21, 2010).
IT IS ORDERED:
1. Plaintiff's motion to stay or reschedule the case management conference (Doc. 53) is denied.
2. The case management conference remains set for February 11, 2011 at 4:30 p.m. (Doc. 52).
DATED this 28th day of January, 2011.