Opinion
Case No.: 19CV1004-LAB (KSC)
11-18-2020
JEFF SIKKING, et al. Plaintiffs, v. RICHARD C. GRISWOLD, et al. Defendants.
ORDER REQUIRING PLAINTIFF LEON-QIYAM POGUE TO UPDATE ADDRESS;
ORDER REQUIRING PLAINTIFFS TO CONTINUE LITIGATING THIS ACTION DILIGENTLY; AND
ORDER REQUIRING PLAINTIFFS JEFF AND BARBARA SIKKING TO NOTIFY CO-PLAINTIFF POGUE OF THIS ORDER
On September 23, after Plaintiffs repeatedly failed to serve Defendant JPMorgan Chase Bank, the Court dismissed claims against the bank, and dismissed the bank as a party. On October 2 the Court denied Plaintiffs' motion for reconsideration of that order, and the Court has continued to deny repeated requests for reconsideration of that decision. The Court did not, however, dismiss all claims, and several claims remain pending in the case. In particular, Richard Griswold and the City of San Diego remain as Defendants in this case, and their respective motions to dismiss (Docket no. 32) are still pending.
Nevertheless, Plaintiffs appealed the Court's dismissal of JPMorgan Chase Bank's dismissal to the Ninth Circuit. They also purported to appeal the entire case, including rulings the Court has yet to make on the two pending motions to dismiss. They have filed two separate notices of appeal, although both seek to appeal the same things. The Ninth Circuit opened only one docket as to both notices of appeal. It has issued a scheduling order, but has taken no other action.
Ordinarily, a notice of appeal deprives the District Court of jurisdiction over the matters appealed. But a notice of appeal from a non-final, non-appealable order does not deprive the Court of jurisdiction, and the Court may disregard it and proceed to adjudicate the case. Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966). The Court's order dismissing claims against JPMorgan Chase Bank is just such an order; it dismissed one Defendant and the claims against that Defendant, but the action as a whole remains pending. See Fed. R. Civ. P. 54(b). The other matters appealed are not orders at all; rather, Plaintiffs have anticipatorily appealed other future rulings. The only two avenues for an interlocutory appeal of the kind Plaintiffs are bringing are Fed. R. Civ. P. 54 and 28 U.S.C. 1292(b). See Corbello v. DeVito, 2012 WL 2782601, at *2 (D.Nev., July 9, 2012). Neither applies here, and no final judgment has been entered.
The Court therefore disregards both notices of appeal, and ORDERS Plaintiffs to continue prosecuting their claims in this Court, without waiting for the outcome of their appeal. They must do this even if they disagree with the Court's characterization of their appeal or the Court's reasoning in this order. If they fail to prosecute their claims, this action may be dismissed without prejudice.
Beginning in late October, mail sent to Plaintiff Leon-Qiyam Pogue has repeatedly been returned as undeliverable. (Docket nos. 72-77, 79-81.) But mail / / / sent to Plaintiffs Jeff and Barbara Sikking has not been returned, so presumably their address is up-to-date.
Civil Local Rule 83.11(b) requires parties proceeding pro se to keep both the Court and opposing parties advised as to their current address. Under that rule, if mail directed to pro se plaintiffs is returned by the Post Office, they must notify the Court within 60 days of their current address. Otherwise, the Court may dismiss the action without prejudice for failure to prosecute. See Nunez-Martinez v. United States, 2020 WL 42457, slip op. at *1 n.1 (C.D.Cal., Jan. 2, 2020) (holding that plaintiff's failure to keep the court apprised of his current address in violation of local rules amounted to lack of prosecution); Civil Local Rules 83.1, 83.11(b).
Plaintiff Pogue is ORDERED to file a notice of change of address in the docket as soon as possible, and in no event later than December 28 , 2020 . Pogue should not email his change of address, call chambers, or attempt to visit chambers in person. Instead, he should file it in the Clerk of Court's drop box or else file it by mail, leaving plenty of time for it to arrive and be docketed before the deadline. Plaintiffs Barbara and Jeff Sikking are ORDERED to notify their co-Plaintiff Pogue of this order promptly.
IT IS SO ORDERED. Dated: November 18, 2020
/s/_________
Honorable Larry Alan Burns
Chief United States District Judge