Opinion
CV 01-10347 LGB (JTLx)
July 18, 2003
ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT WITH PREJUDICE
Plaintiff Eric Gadsden filed a complaint on November 30, 2001 alleging a number of claims against the Commissioner of Internal Revenue ("the Commissioner"). The Commissioner brought a motion to dismiss on February 15, 2002. The motion was granted on April 15, 2002. In granting the motion, several of plaintiff's claims were dismissed with prejudice, while one based on 26 U.S.C. § 6103 was dismissed with leave to amend.
On May 3, 2002, Gadsden filed the current Amended Complaint stating that "the subject matter of this action is predicated on 26 U.S.C. § 6103 and 26 U.S.C. § 7431." Amended Compl, at 1. The Commissioner then filed the present motion on June 13, 2002 requesting dismissal for lack of jurisdiction and failure to state a claim. The next day, Gadsden filed a notice of appeal "from the final judgment entered in this action on the Sixteenth day of April 2002." Notice of Appeal. Gadsden has not filed an opposition.
Before addressing the merits of the Commissioner's motion, the Court must address a jurisdictional concern. Under normal circumstances, the filing of a notice of appeal divests a district court of jurisdiction.See Estate of Connors v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Here, however, Gadsden has appealed a non-appealable order because the April 15, 2002 order is not final — as a matter of fact, Gadsden's Amended Complaint is still actively before the Court. See id. (no transfer of jurisdiction where notice of appeal is from an unappealable order); WMX Technologies v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en bane) (dismissal with leave to amend not final appealable order).
Papers not timely filed by a party including any memoranda or other papers required to be filed under this rule will not be considered and may be deemed by the Court consent to the granting or denial of the motion, as the case may be. Local Rule 7-12. As Gadsden has already appealed in this action, the Court construes his failure to file an opposition as consent to the granting of the motion. Moreover, in a March 21, 2002 minute order postponing consideration of the first motion to dismiss in recognition of Gadsden's pro se status, the Court warned Gadsden that failure to comply with the applicable rules of court might result in dismissal. Good cause appearing, the Court GRANTS the Commissioner's motion to dismiss. This action is hereby DISMISSED WITH PREJUDICE.