Opinion
Civil Action No. 3:03-CV-0879-D
July 24, 2003
ORDER
Defendants have filed a July 10, 2003 motion for reconsideration of the part of the court's June 23, 2003 memorandum opinion and order that awards plaintiff attorney's fees and costs in connection with obtaining the remand of this removed case. Plaintiff has filed a July 22, 2003 application for award of attorney's fees and reimbursement of expenses. Defendants have also filed a July 23, 2003 notice of appeal. The court sua sponte must address its jurisdiction to consider plaintiff's fee application and defendants' motion for reconsideration.
The notice of appeal does not deprive the court of jurisdiction to address plaintiff's fee application. See, e.g., Procter Gamble Co. v. Amway Corp., 280 F.3d 519, 524-25 n. 2 (5th Cir. 2002) (collecting authorities that hold that district court retains jurisdiction to resolve motion for attorney's fees while judgment on merits is pending on appeal).
The notice of appeal does, however, arguably deprive the court of jurisdiction to grant defendants' motion for reconsideration. It is well settled that the filing of a notice of appeal divests the court of jurisdiction over any matter involved in the appeal. See Alvestad v. Monsanto Co., 671 F.2d 908, 911 n. 2 (5th Cir. 1982); Henry v. Indep. Am. Sav. Ass'n, 857 F.2d 995, 997-98 (5th Cir. 1988). A district court is authorized to deny Fed.R.Civ.P. 60(b) relief while an appeal is pending, but it may not grant such relief without obtaining leave from the court of appeals. See Willie v. Cont'l Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984), vacated by rehearing en banc, 760 F.2d 87 (5th Cir. 1985), on reh'g, 784 F.2d 706 (5th Cir. 1986) (en banc). Defendants' motion for reconsideration is at least analogous to, if it is not in fact, a Rule 60(b) motion, because defendants filed it more than ten countable days after the court's June 23, 2003 memorandum opinion and order was entered on the docket. The court determines the correct nature of the motion according to the date defendants filed it. See Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990) (holding that in context of final judgment, motion for "reconsideration" is treated as Rule 59(e) or 60(b) motion, depending on when served). "If the motion is [filed] within ten days of the rendition of judgment, the motions falls under Rule 59(e); if it is [filed] after that time, it falls under Rule 60(b)." (footnote omitted)). See Freeman v. County of Bexar, 142 F.3d 848, 852 n. 7 (5th Cir. 1998) ("As an irrelevant aside, we note that after Lavespere was issued, rule 59(e) was amended to measure the 10-day filing period according to the motion's filing date rather its date of service."). Treating defendants' July 10, 2003 motion for reconsideration as a Rule 60(b) motion, it appears that the court lacks jurisdiction to grant it. Accordingly, within ten days of the date this order is filed, defendants must advise the court of a jurisdictional basis for the court to address their motion, seek dismissal of their appeal (without prejudice to filing another notice if the court denies their motion), or withdraw or advise the court that they do not seek a ruling on their motion for reconsideration.
"See Rule 6(a). The memorandum opinion and order was entered on the docket on June 24, 2003. Excluding intermediate Saturdays, Sundays, and a legal holiday (July 4th), the tenth countable day was July 9, 2003.