Opinion
No. CV-17-03340-PHX-JAT
10-21-2019
Jerry Alfonso Ochoa, Petitioner, v. Charles Ryan, et al., Respondents.
ORDER
On October 12, 2018, a Report and Recommendation was issued in this case. (Doc. 52). Petitioner filed objections (Doc. 55), which this Court reviewed de novo (Doc. 58). Ultimately this Court denied relief and entered judgment on March 13, 2019. (Doc. 59).
Over six months later, Petitioner filed a motion to vacate under Federal Rule of Civil Procedure 60(b). (Doc. 60). On the same day Petitioner filed the Rule 60(b) motion, September 30, 2019, Petitioner filed a notice of appeal. (Doc. 61).
Generally, the filing of a notice of appeal divests this Court of jurisdiction over the case. Natural Res. Def. Council v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). Even after a notice of appeal has been filed, however, this Court retains jurisdiction pursuant to Fed. R. App. P. 4(a)(4)(B)(i) to dispose of certain previously-filed motions to modify, amend or provide relief from the Court's judgment. See Natural Res. Def. Council, 242 F.3d at 1166. The notice of appeal is ineffective until the Court has disposed of such motions. See Fed. R. App. P. 4(a)(4)(B)(i) (stating that "...the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered"). As is relevant to this case, this Court retains jurisdiction to decide motions "for relief under [Fed. R. Civ. P.] 60, if the motion is filed no later than 28 days after judgment is entered." Fed. R. App. P. 4(a)(4)(A)(vi).
As indicated above, the Rule 60 motion filed in this case was not filed within 28 days of the judgment. Accordingly, this Court does not have jurisdiction to consider it because a notice of appeal has been filed. Therefore,
IT IS ORDERED denying Plaintiff's Rule 60(b) motion (Doc. 60), without prejudice, for lack of jurisdiction.
Because this Court did not consider this motion substantively, this Court has not decided whether to issue a certificate of appealability. See Lynch v. Blodgett, 999 F.2d 401, 402-03 (9th Cir. 1993).
Dated this 21st day of October, 2019.
/s/ _________
James A. Teilborg
Senior United States District Judge