Opinion
No. 2: 16-cv-2948 KJN P
08-24-2017
TUANJA EDWARD ANDERSON, Plaintiff, v. M. VOONG, et al., Defendants.
ORDER
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. On March 16, 2017, this action was dismissed and judgment was entered. (ECF Nos. 8, 9.) On March 27, 2017, plaintiff filed a notice of appeal, which is now pending before the Ninth Circuit Court of Appeals. (ECF No. 10.)
On July 5, 2017, plaintiff filed a motion for reconsideration of the March 16, 2017 order dismissing his case. (ECF No. 15.) The undersigned construes plaintiff's motion as a request for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).
Generally "[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). However, "[u]nder Appellate Procedure Rule 4(a), a Rule 60(b) motion is 'pending' and suspends the effect of a notice of appeal when the motion is filed 'no later than 28 days after the judgment is entered.' Fed. R. App. Proc. 4(a)(4)(A)(vi)." Lasenbby v. State Farm Fire & Cas. Co., 2015 WL 3505320, at *1 n.5 (D. Nev. June 2, 2015) (citing United Nat'l Ins. v. R & D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (notice of appeal did not divest district court of jurisdiction because motion for reconsideration was pending).)
Plaintiff's motion for relief from judgment was filed more than 28 days after the judgment was entered. Accordingly, this court does not have jurisdiction to consider this motion.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for reconsideration (ECF No. 15), construed as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), is disregarded for lack of jurisdiction. Dated: August 24, 2017
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE An2948.ord