March 31, 2014
FRANCIS ANTHONY GRANDINETTI, II, Plaintiff,
CALIFORNIA, et al., Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
Susan Oki Mollway, Chief United States District Judge
On February 24, 2014, the court construed this action as brought pursuant to 42 U.S.C. § 1983 and found that Plaintiff had failed to state a claim, had accrued three strikes under 28 U.S.C. § 1915(g), and had failed to allege imminent danger of serious physical injury. The court dismissed the action without prejudice to Plaintiff’s refiling of his claims with concurrent payment of the filing fee. See Doc. No. 4, PageID #9.
Before the court is Plaintiff’s Federal Rules of Civil Procedure Rule 59(e) Motion for Reconsideration, Doc. No. 6, and his concurrently filed notice of appeal, Doc. No. 8. Plaintiff’s Motion for Reconsideration is DENIED.
I. Jurisdiction to Review the Motion
As a general rule, “[o]nce a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed.” See Natural Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). Federal Rule of Appellate Procedure 4(a)(4)(B)(I), however, allows a district court to amend a judgment, even when a notice of appeal has been filed, in certain situations. Appellate Rule 4(a)(4)(B)(I) provides:
If a party files a notice of appeal after the court announces or enters a judgment - but before it disposes of any motion listed in Rule 4(a)(4)(A) - 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.
Id. Appellate Rule 4(a)(4)(A) identifies a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59 as such a motion. A Rule 59(e) motion must be “filed no later than 28 days after the entry of judgment.” Fed.R.Civ.P. 59(b). Plaintiff’s Rule 59(e) motion for reconsideration is therefore timely.
Appellate Rule 4(a)(4)(B)(I), however, does not specify how it operates when a motion for reconsideration is timely filed concurrently with a notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(i). The Transmittal Note to the 1993 Amendment to Appellate Rule 4(a)(4) states that a “notice [of appeal] filed before the filing of one of the specified motions or after the filing of a motion but before the disposition of the motion is, in effect, suspended until the motion is disposed of, whereupon, the previously filed notice effectively places jurisdiction in the court of appeals.” Although the Ninth Circuit has not expressly addressed this issue, “recent case law suggests that it would embrace the Advisory Committee’s interpretation of Appellate Rule 4(a)(4).” Yousefian v. City of Glendale, No. CV 11–03579, 2013 WL 948743, at *1 (C.D. Cal. Mar. 11, 2013) (citing Crawford v. Kingdom of Saudi Arabia, No. CV 11–05206, 2012 WL 3638628, at *3 (N.D. Cal. Aug. 22, 2012) (noting that Ninth Circuit held appeal in abeyance pending district court resolution of post-judgment motion filed after notice of appeal but within Rule 4(a)(4)’s 28-day time period)).
The court concludes that it has jurisdiction to consider Plaintiff’s motion for reconsideration because his concurrently filed notice of appeal is “in effect, suspended.” See also Miller v. Marriott Int’l, Inc., 300 F.3d 1061, 1064 (9th Cir. 2002) (“Under [Appellate] Rule 4(a)(4)(A), the [plaintiffs’] Rule 60(b) motion prevented the [plaintiffs’] notices of appeal from becoming effective until the district court rules on the merits of those motions.”).
II. The Motion For Reconsideration is Without Merit
Plaintiff’s Motion makes little sense and is not responsive to the court’s reasons for dismissing this action. Plaintiff fails to show that: (1) he was in imminent danger of serious physical injury when he commenced this action; (2) he states a claim relating to his complaints about his transfer from Hawaii; or (3) the court’s decision was otherwise incorrect. Plaintiff fails to “demonstrate reasons why the court should reconsider its prior decision, ” or “set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Hele Ku KB, LLC v. BAC Home Loans Servicing, LP, 873 F.Supp.2d 1268, 1289 (D. Haw. 2012).
Plaintiff’s Motion for Reconsideration is DENIED. The court will take no further action on any documents Plaintiff files in this action.
IT IS SO ORDERED.