Ochoa 219194 v. Ryan ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jerry Alfonso Ochoa, No. CV-17-03340-PHX-JAT 10 Petitioner, ORDER 11 v. 12 Charles Ryan, et al., 13 Respondents. 14 15 On October 12, 2018, a Report and Recommendation was issued in this case. (Doc. 16 52). Petitioner filed objections (Doc. 55), which this Court reviewed de novo (Doc. 58). 17 Ultimately this Court denied relief and entered judgment on March 13, 2019. (Doc. 59). 18 Over six months later, Petitioner filed a motion to vacate under Federal Rule of Civil 19 Procedure 60(b). (Doc. 60). On the same day Petitioner filed the Rule 60(b) motion, 20 September 30, 2019, Petitioner filed a notice of appeal. (Doc. 61). 21 Generally, the filing of a notice of appeal divests this Court of jurisdiction over the 22 case. Natural Res. Def. Council v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 23 2001). Even after a notice of appeal has been filed, however, this Court retains jurisdiction 24 pursuant to Fed. R. App. P. 4(a)(4)(B)(i) to dispose of certain previously-filed motions to 25 modify, amend or provide relief from the Court’s judgment. See Natural Res. Def. Council, 26 242 F.3d at 1166. The notice of appeal is ineffective until the Court has disposed of such 27 motions. See Fed. R. App. P. 4(a)(4)(B)(i) (stating that “…the notice becomes effective to 28 appeal a judgment or order, in whole or in part, when the order disposing of the last such 1 || remaining motion is entered”). As is relevant to this case, this Court retains jurisdiction to 2|| decide motions “for relief under [Fed. R. Civ. P.] 60, if the motion 1s filed no later than 28 || days after judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(v1). 4 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 6 || because a notice of appeal has been filed. Therefore, 7 IT IS ORDERED denying Plaintiff's Rule 60(b) motion (Doc. 60), without 8 || prejudice, for lack of jurisdiction.! 9 Dated this 21st day of October, 2019. 10 11 a 3 12 James A. Teilborg 13 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ' 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). _2-