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McGowan v. Hulick

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 13, 2009

MICHAEL MCGOWAN, PLAINTIFF,
v.
DONALD HULICK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: David R Herndon Chief Judge United States District Court

MEMORANDUM AND ORDER

HERNDON, Chief Judge

Before the Court is Plaintiff's motion for relief from judgment (Doc. 15), filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. However, prior to filing this motion, Plaintiff filed a notice of appeal (Doc. 8).

Plaintiff's filing of a notice of appeal has transferred jurisdiction over this matter to the United States Court of Appeals, Seventh Circuit. "[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)). "Just as the notice of appeal transfers jurisdiction to the court of appeals, so the mandate returns it to the district court. Until the mandate issues, the case is 'in' the court of appeals, and any action by the district court is a nullity." Kusay, 62 F.3d at 193 (citing United States v. Wells, 766 F.2d 12, 19 (1st Cir. 1985); Zaklama v. Mt. Sinai Medical Center, 906 F.2d 645, 649 (11th Cir. 1990); 16 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice & Procedure § 3949 at 359 (1977)). Consequently, this Court is without jurisdiction to consider Plaintiff's pleadings. Accordingly, Plaintiff's motion for relief from judgment is DISMISSED for lack of jurisdiction.*fn1

IT IS SO ORDERED.


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