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Larry v. Goldsmith

United States District Court, E.D. Wisconsin

June 11, 2019

ORLANDO LARRY, Plaintiff,
v.
RUSSELL GOLDSMITH, et al., Defendants.

          ORDER DECLINING TO RULE ON PLAINTIFF'S MOTION FOR RECONSIDERATION (DKT. NO. 92) AND GRANTING PLAINTIFF'S MOTION TO APPEAL WITHOUT PREPAYING THE FILING FEE (DKT. NO. 94)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On March 11, 2019, the court granted the defendants' motion for summary judgment, dismissed the complaint and entered judgment. Dkt. Nos. 85, 86. About two weeks later, the plaintiff filed a notice of appeal, and about three weeks after that, he filed a motion for reconsideration. Dkt. Nos. 87, 92.

         “The filing of an appeal . . . deprive[s] the district court of jurisdiction over the case.” Boyko v. Anderson, 185 F.3d 672, 674 (7th Cir. 1999).

[T]he district court and the court of appeals do not share jurisdiction over the same case. Jurisdiction is either all in one court or all in the other. This rule is necessary to prevent one court's stepping on the toes of the other, which would waste judicial time as well as forcing the parties to proceed in two courts in the same case at the same time.

Id. (citations omitted).

         In other words, once the case goes to the court of appeals (which this case has), the district court does not have jurisdiction to rule on motions the party files in this court. There are limited exceptions to this rule: Circuit Rule 57 of the United States Court of Appeals for the Seventh Circuit states that if during the pendency of an appeal, a party files a motion under Federal Rule of Civil Procedure 60(a) or 60(b), Federal Rule of Criminal Procedure 35(b), “or any other rule that permits the modification of a final judgment, ” that party should ask the district court to indicate whether it is inclined to grant the motion. If the district court says it is so inclined, the Seventh Circuit will remand the case to the district court to modify the judgment.

         The plaintiff filed his motion for reconsideration under Fed.R.Civ.P. 60(a) and (b), but he did not ask the court whether it would be inclined to grant the motion. If he had asked, the court would have told him that it is not so inclined.

         The plaintiff raises three issues in his motion for reconsideration. First, he asserts that “the court made a mistake when it dismissed Michael Meisner” in its November 23, 2016 screening order because “Meisner is liable under the doctrine of respondeat superior.” Dkt 92 at 2. Second, he asserts that the defendants filed “sham declarations” to prove that a handbook containing the rule at issue was available to the plaintiff on his unit at the time of the alleged misconduct. Id. at 2-3. Third, he asserts that the “court was in error” when it “mischaracterized the plaintiff's claim” and failed to consider arguments relevant to claims that he raised for the first time in his response to the defendants' motion for summary judgment. Id. at 3-5.

         Rule 60(a) allows a court to “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.” The plaintiff does not assert that that court made a clerical mistake or a mistake arising from oversight or omission. The plaintiff asserts that the court's reasoning and decisions were wrong. Rule 60(a) does not apply.

         Rule 60(b) allows a court to relieve a party from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) 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) fraud . . ., misrepresentation, or misconduct by an ...

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