United States District Court, N.D. California, San Francisco Division
ORDER DENYING MR. KINNEY'S SECOND MOTION FOR RECONSIDERATION
Re: ECF No. 24]
LAUREL BEELER, Magistrate Judge.
Mr. Kinney moves, pursuant to Federal Rules of Civil Procedure 59 "and/or" 60, "to vacate, for relief, for alteration and/or for reconsideration of" the court's May 15, 2015 order granting the State Bar's motion to remand and June 2, 2015 order denying Mr. Kinney's motion to stay the May 15, 2015 order. (Second Motion for Reconsideration, ECF No. 24 at 2; see Remand Order, ECF No. 13; Order Denying Stay, ECF No. 23.) For the reasons stated below, the court denies Mr. Kinney's motion.
Charles Kinney removed an attorney disciplinary action brought against him by the California Supreme Court. (Notice of Removal, ECF No. 1.) On May 15, 2015, the court remanded the action pursuant to 28 U.S.C. § 1447(c) for lack of subject-matter jurisdiction. (Remand Order, ECF No. 13.) Three days later, on May 18, 2015, Mr. Kinney filed a motion pursuant to Federal Rules of Civil Procedure 59 and 60 that asked the court to reconsider its remand order. (First Motion for Reconsideration, ECF No. 14.) The next day, on May 19, 2015, the clerk of the court mailed a certified copy of the remand order to the state court. (5/19/2015 Clerk's Notice, ECF No. 15.) A few days after that, on May 26, 2015, Mr. Kinney filed a motion asking the court to stay its remand order. (Motion to Stay, ECF No. 16.)
On May 27, 2015, the court issued an amended remand order that fixed a citation error. (Amended Remand Order, ECF No. 18.). Also on May 27, 201, the court issued an order denying Mr. Kinney's first motion for reconsideration, and the court amended that order on June 2, 2015. (Order Denying Reconsideration, ECF No. 19; Amended Order Denying Reconsideration, ECF No. 22.) In doing so, the court made clear that it remanded the attorney disciplinary action pursuant to 28 U.S.C. § 1447(c) for lack of subject-matter jurisdiction, not for a defect in removal procedure as Mr. Kinney suggested in his motion for reconsideration. Also on June 2, 2015, the court denied Mr. Kinney's motion to stay, and the clerk of the court mailed a certified copy of the court's amended remand order to the state court. (Order Denying Stay, ECF No. 23; 6/2/2015 Clerk's Notice, ECF No. 21.)
Thereafter, on June 8, 2015, Mr. Kinney filed a second motion for reconsideration. (Second Motion for Reconsideration, ECF No. 24.) Four days later, on June 12, 2015, Mr. Kinney filed a notice of appeal in which he appeals to the Ninth Circuit the following six orders: (1) the May 15, 2015 remand order; (2) the May 27, 2015 amended remand order; (3) the May 27, 2015 order denying reconsideration; (4) the June 2, 2015 amended order denying reconsideration; (5) the June 2, 2015 order denying a stay; and (6) "the (expected but not yet issued) order denying" Mr. Kinney's second motion for reconsideration. (Notice of Appeal, ECF No. 26 at 2.)
I. THE COURT HAS JURISDICTION TO CONSIDER MR. KINNEY'S MOTION
Before the court considers the merits of Mr. Kinney's second motion for reconsideration, it must first determine whether jurisdiction exists to do so. First, while there is little authority on this issue, the court does not believe that the fact that the action was already remanded means the court is precluded from considering Mr. Kinney's motion. It is true that the Ninth Circuit determined in Seedman v. United States District Court for the Central District of California that the event that divests the district court of jurisdiction is the mailing of the certified copy of the order of remand to the clerk of the state court. 837 F.2d 413, 414 (9th Cir. 1988) ("Once a [district] court certifies a remand order to state court [the district court] is divested of jurisdiction and can take no further action on the case."); see also 28 U.S.C. § 1447(c) ("A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case."). In this case, the clerk already mailed certified copies of the remand order and amended remand order to the state court, so normally this would mean that the court no longer has jurisdiction to consider a motion for reconsideration. See, e.g., Deutsche Bank Nat'l Trust Co. v. Krevitsky, No. 1:12-cv-1466 AWI DLB, 2012 WL 4863872, at *1 (E.D. Cal. Oct. 12, 2012) (denying a motion for reconsideration of a remand order where a certified copy of the remand order had already been mailed to the state court).
But it is also true that Seedman involved an instance where the district court was precluded from reviewing its remand order because that order was one that was "not reviewable on appeal or otherwise." 837 F.2d at 414; see In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir. 1991) (making a similar distinction regarding Fifth Circuit authority). As the court noted previously, the court's decision that this action was not removable under 28 U.S.C. § 1443, however, is reviewable "by appeal or otherwise." 28 U.S.C. § 1447(d) ("[A]n order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise."). In such a situation-where the district court clerk already mailed a certified copy of the remand order to the state court but where the action was removed in part pursuant to 28 U.S.C. § 1443-at least one district court has concluded that it still may reconsider its remand order. See Bank of Am., N.A. v. Johnson, No. C-06-396, 2006 WL 2981190, at *1 (S.D. Tex. Oct. 16, 2006) (refusing to reconsider remand order insofar as it was based on a lack of federal-question or diversity jurisdiction but considering (and rejecting) the defendant's arguments regarding the propriety of removal under 28 U.S.C. § 1443, even though a certified copy of the remand order had already been mailed to the state court). Given this authority, the court concludes that it may still review its remand order even though Mr. Kinney filed his second motion for reconsideration after the clerk of the court mailed certified copies of the remand orders to the state court.
Second, although "[a]s a general rule, the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal, " Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997), and although Mr. Kinney has filed a notice of appeal, the court still has jurisdiction to entertain and rule on Mr. Kinney's motion. See Daniels v. Community Lending, Inc., No. 13cv488-WQH-JMA, 2015 WL 2338713, at *3 n.2 (S.D. Cal. May 12, 2015) (considering a party's motion for reconsideration even though the party subsequently filed a notice of appeal) (citing Stone v. I.N.S., 514 U.S. 386, 401 (1995) ("[T]he pendency of an appeal does not affect the district court's power to grant Rule 60 relief.")); Fews v. Perez, No. C 03-3770 PJH (PR), 2006 WL 2791151, at *1 (N.D. Cal. Sept. 27, 2006) ("[I]f a notice of appeal is treated as having been filed after the motion to reconsider, this court has jurisdiction to rule on the motion and the notice of appeal does not become effective until the motion is ruled upon....") (citing Fed. R. App. P. 4(a)(4)(B) (a notice of appeal that is filed while certain motions, including a motion for reconsideration under Rules 59 and 60, are pending is not effective until such motions are ruled upon)).
In sum, the court concludes that there is no jurisdictional bar to its consideration of Mr. Kinney's second motion for reconsideration. The court ...