Opinion
CV F 96-5948 AWL DLB, [Document #257]
May 14, 2002
ORDER DENYING MOTION TO DISMISS FOR LACK OF JURISDICTION FINAL JUDGMENT AND ORDER OF JUDICIAL SALE
BACKGROUND
On April 1, 1998, the court granted summary judgment to the United States. The same day, the court denied Simmons' motion to file an amended counterclaim. On April 22, 1998, Simmons filed a notice of appeal. On May 5, 1998, the court filed an Order of Judicial Sale, which was amended by Order entered on April 27, 2000, respecting the sale of coins and amended by Order entered on October 24, 2000, respecting the sale of real property. On May 6, 1998, the Clerk of the Court entered judgment in this action. On July 1, 1998, the Ninth Circuit dismissed the April 22, 1998 appeal because the appeal was never perfected as prescribed by the Federal Rules of Appellate Procedure.
On April 10, 1998, the Ninth Circuit dismissed an appeal filed by Simmons on February 17, 1998 for want of jurisdiction.
On July 2, 1998, Simmons filed a notice of appeal from the final judgment and the Order of Judicial Sale. The Ninth Circuit affirmed.
After further amendments to the Order of Judicial Sale and other post judgment motions, on September 14, 2001, Simmons filed a notice of appeal concerning the amendments to the Order of Judicial Sale. This appeal is currently pending.
On April 12, 2002, Simmons filed a motion to dismiss. Simmons argues that this court lacked jurisdiction to issue the Order of Judicial Sale because an appeal was pending. On April 25, 2002, the United States filed an opposition. The United States argues that the April 22, 1998 appeal did not deprive this court of jurisdiction because it was a premature appeal.
DISCUSSION
The filing of a notice of appeal generally divests a district court of jurisdiction to determine the "substantial rights" at issue in an action during the pendency of the appeal. Pyrodyne Corp. v. Pyrotronics Corp., 847 F.2d 1398, 1403 (9th Cir. 1988). "This transfer of jurisdiction from the district court to the court of appeals is not effected, however, if a litigant files a notice of appeal from an unappealable order." Estate of Conners v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993); see also Ruby v. Secretary of the United States Navy, 365 F.2d 385, 389 (9th Cir. 1966). In this case, Simmons appealed the court's orders issued on April 1, 1998. However, Simmons filed his notice of appeal before the court entered judgment and the Order of Judicial Sale. A notice of appeal could only be filed from the judgment, not the grant of summary judgment. See 28 U.S.C. § 1291; Fed.R.App.P. 4. Further, under Rule 4 of the Federal Rules of Appellate Procedure, a notice of appeal filed after the court enters an order but before judgment is deemed filed on the date of entry of judgment. In other words, the April 22, 1998 notice of appeal was deemed filed on May 6, 1998. Thus, the April 22, 1998 notice of appeal did not deprive this court of jurisdiction to enter final judgment and the Order of Judicial Sale.
This case is similar to Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir. 1966). In Ruby, a motion to dismiss a complaint was granted on June 17, and a notice of appeal from the order was filed on July 14. However, the judgment dismissing the action was not entered until August 3. The Ninth Circuit held that the premature notice of appeal did not deprive the trial court of jurisdiction to enter the judgment. Id. at 389. Similarly, this court was not deprived of jurisdiction to enter judgement and the Order of Judicial Sale by the premature notice of appeal filed after the grant of summary judgment and before entry of judgment. In addition, because the April 22, 1998 appeal was dismissed by the Ninth Circuit on procedural grounds, there can be no argument that the April 22, 1998 appeal deprived this court of jurisdiction because the Ninth Circuit did not review the merits of the April 22, 1998 appeal.
While the court finds no merit to Simmons' motion and finds that it had jurisdiction to enter the Order of Judicial Sale on May 5, 1998 and to enter final judgment on May 6, 1998, the court does not believe Simmons' motion is proper at this time. Simmons has framed his motion as a motion to dismiss. This action is over, judgment has been granted, judgment has been upheld on appeal, and this court's post-judgment orders are currently on appeal. There is nothing before this court to dismiss. The Federal Rules of Civil Procedure do not allow for a motion to dismiss after final judgment. As such, the current motion before the court is not procedurally proper. Finally, the court notes that this action is again on appeal. Thus, it is questionable whether the court even has jurisdiction to rule on the pending motion.
Accordingly, the court ORDERS that Simmons' motion to dismiss for lack of jurisdiction is DENIED.