Opinion
Case No. 3:06-cr-174-1
06-19-2013
United States of America, Plaintiff, v. Anthony Bissacco, Defendant.
Judge Thomas M. Rose
ENTRY AND ORDER NOTING NULLITY OF
DEFENDANT'S NOTICE OF APPEAL. DOC. 633.
On May 29, 2013, the Magistrate Judge assigned to this case entered a report and Recommendation recommending that the Court deny Defendant's Motion to Vacate with prejudice. Doc. 631. Defendant first filed a notice of appeal, doc. 633, and then a timely objection to the report and recommendation. Doc. 635.
Normally, filing a notice of appeal divests the District Court of jurisdiction over a case and vests jurisdiction in the Circuit Court of Appeals until the district court receives the mandate of the court of appeals. Marrese v. American Academy of Osteopathic Surgeons, 470 U.S. 373 (1985); Pickens v. Howes, 549 F.3d 377, 381 (6th Cir. 2008); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993); Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993); Cochran v. Birkel, 651 F.2d 1219, 1221 (6th Cir. 1981). However, a district court retains jurisdiction over an action when appeal is attempted to be taken from a non-appealable non-final order. Lewis, 987 F.2d at 395; Rucker v. United States Dept. of Labor, 798 F.2d 891, 892 (6th Cir. 1986); Baker v. Raulie, 879 F.2d 1396 (6th Cir. 1989) (per curiam). Reports and recommendations are not final appealable orders. The Court is not divested of jurisdiction by a premature appeal. Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir.1981) ("a notice of appeal from a plainly nonappealable order may properly be ignored by the district court."); Erie Indem. Co. v. Keurig, Inc., 2011 WL 4361588, *2 (N.D. Ohio 2011). Wherefore, the Court notes that it retains jurisdiction to resolve Defendant's objection to the Report and Recommendation.
DONE and ORDERED in Dayton, Ohio, this Wednesday, June 19, 2013.
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THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE