Opinion
CIVIL ACTION NO. 08-0883.
December 12, 2008
ORDER
Before this Court is a Second Motion to Strike Untimely Notice of Appeal, or, in the Alternative, Motion to Dismiss Untimely Notice of Appeal [Record Document 26], filed on behalf of defendant, General Motors.
As a general rule, when an appeal is taken, the district court is divested of jurisdiction except to take action in aid of the appeal, unless the case is remanded to it by the appellate court, or to correct clerical errors under Federal Rule of Civil Procedure 60(b). Travelers Ins. Co. V. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 n. 3 (5th Cir. 1994). Defendants point to Gilda Industries, Inc. v. U.S., 511 F.3d 1348, 1350 (C.A. Fed. 2008) for the argument that an untimely notice of appeal does not divest the district court of jurisdiction over the case. However, in Gilda, there were matters pending before the district court that had not yet been resolved. In the present matter, there are no pending motions and the court has rendered a final judgment dismissing the case with prejudice. Plaintiff's filing of a notice of appeal therefore divested this court of jurisdiction. All motions seeking to dismiss the appeal must be filed with the Court of Appeals for the Fifth Circuit. See Manriquez v. U.S., 274 Fed.Appx. 351 (5th Cir. 2008) and Graham v. Dretke, 102 Fed.Appx. 420 (5th Cir. 2004), wherein the Fifth Circuit dismisses the notices of appeal as untimely.
IT IS ORDERED that the foregoing motion be and is hereby DISMISSED. THUS DONE AND SIGNED in Shreveport, Louisiana.