United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTIONS FOR INDICATIVE
RULING (DOC. NOS. 55, 57)
Before
the court are plaintiff John Lucas's motions for
indicative ruling. (Doc. Nos. 55, 57.) The two motions are
substantively identical.[1] Defendants filed an opposition to
plaintiff's motion on November 21, 2019. (Doc. No. 56.)
On November 25, 2019 the court vacated the noticed hearing
date pursuant to Local Rule 230(g) and took the motion under
submission. (Doc. No. 58.) On December 2, 2019, plaintiff
filed a reply. (Doc. No. 60.)
BACKGROUND
In his
first amended complaint filed in this action, plaintiff
asserted that defendants violated his rights by refusing to
take custody of his ex-wife whom he had placed under a
citizen's arrest for allegedly committing perjury during
family law proceedings. (Doc. No. 21.) On August 10, 2018,
defendants moved to dismiss plaintiff's first amended
complaint. (Doc. Nos. 22, 23.) The undersigned referred
defendants' motion to the assigned magistrate judge,
(Doc. No. 30), who issued findings and recommendations on
September 18, 2018, recommending defendants' motion be
granted and that plaintiff's complaint be dismissed with
prejudice because plaintiff had failed to allege facts to
support his claims and the granting of leave to amend would
be futile (Doc. No. 39). On December 5, 2018, the undersigned
adopted the magistrate judge's findings and
recommendations in full, dismissing plaintiff's first
amended complaint without further leave to amend and
directing the Clerk of the Court to close this case. (Doc.
No. 46.) Accordingly, judgment was entered on December 5,
2018. (Doc. No. 47.)
Plaintiff
appealed to the Ninth Circuit, filing a notice of appeal on
December 20, 2018. (Doc. No. 49.) Nearly a year later, on
November 18, 2019 and November 21, 2019, plaintiff filed his
motions for an indicative ruling. (Doc. Nos. 55, 57.) On
November 26, 2019, the Ninth Circuit affirmed this
court's order dismissing plaintiff's first amended
complaint without leave to amend. (Doc. No. 59.)
LEGAL
STANDARD
“The
filing of a notice of appeal generally divests the district
court of jurisdiction over the matters appealed.”
McClatchy Newspapers v. Cent. Valley Typographical Union
No. 46, Int'l Typographical Union, 686 F.2d 731, 734
(9th Cir. 1982). Under Federal Rule of Civil Procedure 62.1,
courts can make an indicative ruling when a party files
“a timely motion . . . for relief that the court lacks
authority to grant because of an appeal that has been
docketed and is pending.” Fed.R.Civ.P. 62.1(a);
Best Odds Corp. v. iBus Media Ltd. (Best Odds
Corp. II), 655 Fed.Appx. 582');">655 Fed.Appx. 582, 583 (9th Cir.
2016).[2] Where a party timely moves for relief that
the court cannot grant due to a pending appeal, Rule 62.1
provides that the court may: “(1) defer considering the
motion; (2) deny the motion; or (3) state either that it
would grant the motion if the court of appeals remands for
that purpose or that the motion raises a substantial
issue.” Fed.R.Civ.P. 62.1(a). A request for an
indicative ruling is not a standalone motion; it accompanies
an underlying motion that the movant wants the court to
consider despite the appeal. Where no such underlying motion
is timely filed, Rule 62.1 does not apply. Best Odds
Corp. II, 655 Fed.Appx. at 583 (holding district court
did not err in denying motion for an indicative ruling
because plaintiff “did not file any [] timely motion
for relief” and “[t]hus, Rule 62.1 was not
applicable”). Similarly, once the appellate court
issues a decision ending the appeal, the court's
jurisdiction to rule on the underlying motion is restored,
and the request for an indicative ruling is rendered moot.
See Smith & Nephew, Inc. v. Arthrex, Inc., No.
3:04-cv-00029-MO, 2015 WL 3423024, at *1 (D. Or. May 19,
2015) (denying as moot defendant's motion for indicative
ruling after Federal Circuit issued a mandate affirming the
court's prior decision and ending the appeal).
ANALYSIS
Plaintiff
filed his motions for an indicative ruling while his appeal
of the court's order dismissing his case was pending in
the Ninth Circuit. Because the Ninth Circuit has now issued
its decision affirming this court's order dismissing
plaintiff's complaint with prejudice and ending the
appeal, Rule 61.2 does not apply, and plaintiff's motion
is now moot. See Fed. R. Civ. P. 62.1(a); Smith
& Nephew, Inc., 2015 WL 3423024 at *1.
Additionally,
plaintiff's motion for an indicative ruling fails to
articulate any underlying motion for relief. Plaintiff has
submitted a proposed order which states, “this Court
will grant Plaintiff's motion pursuant to Federal Rules
of Procedure Rule 62.1 and proceed to rule upon
Plaintiff's Motion to Amend Pleadings pursuant to Federal
Rules of Civil Procedure Rule 60(b).” (Doc. No. 57 at
14.) However, plaintiff has not provided the court with a
Rule 60(b) motion or otherwise set forth the grounds on which
he should be relieved from the final judgment. As best the
court can tell, the relief plaintiff seeks is for the court
to allow him to amend his complaint to allege another
incident of defendants refusing to act on his delegation of
authority to perform a citizen's arrest-this time of a
crop-dusting pilot who plaintiff claims sprayed pesticide on
plaintiff's person and property on July 27, 2018. (Doc.
No. 57 at 1-3.)
If the
court construes plaintiff's filing as a motion under Rule
60(b) for relief from judgment- which appears to be
plaintiff's intention-plaintiff has still failed to
articulate any “newly discovered evidence that, with
reasonable diligence, could not have been discovered in time
to move for a new trial under Rule
59(b).”[3] See Fed. R. Civ. P. 60(b)(2);
see also Best Odds Corp. I, 2015 WL 3468917 at *2
(applying Rule 60(b) analysis even though motion for
indicative relief did not invoke Rule 60(b) and denying
plaintiff's motion for indicative ruling). Plaintiff has
also not articulated “any other reason that justifies
relief, ” see Fed. R. Civ. P. 60(b)(2), beyond
asserting that his moving papers “raise a
substantial issue: Defendants' repeated
misapplication of Fourth Amendment probable cause to
citizens' arrests, ” (Doc. No. 60 at 3), which
speaks to a court's options under Rule 62.1 for
indicative rulings, but not to the grounds for the granting
of relief under Rule 60(b).
Moreover,
Rule 60(c) requires that a Rule 60(b) motion “be made
within a reasonable time.” Fed.R.Civ.P. 60(c)(1).
Plaintiff does not explain how his motions were made within a
reasonable time. He filed the motions on November 18, 2019
and November 21, 2019-nearly a year after judgment was
entered in this case on December 5, 2018-and he seeks leave
to amend his complaint to add allegations about a “crop
duster spraying pesticide on plaintiff's person and
property on July 27, 2018, ” (Doc. No. 60 at 3)-an
event that allegedly occurred well before judgment was
entered in this action.[4] Thus, the court concludes that in
addition to not sufficiently articulating any basis for
relief under Rule 60(b), plaintiff's motions were also
not made within a reasonable time.
CONCLUSION
For the
reasons stated above, plaintiffs motions for an indicative
ruling ...