Valentine v. PNC Financial Services Group, Inc.

          ORDER CERTIFYING APPEAL AS FRIVOLOUS AND DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION

          CHRISTINE M. ARGUELLO JUDGE

         This matter is before the Court on Plaintiff Elet Valentine's Second Amended Notice of Appeal (Doc. # 97) and Motion for Reconsideration (Doc. # 96) of this Court's Order Adopting and Affirming August 1, 2019 Recommendation of United States Magistrate Judge (Doc. # 94). Based on the reasons that follow, the Court certifies Plaintiff's latest appeal as frivolous and denies Plaintiff's Motion for Reconsideration.

         I. BACKGROUND

         The Court recently recounted the facts of this case in its Order adopting Magistrate Judge Crews' Recommendation. See (Id.). Accordingly, the Court will reiterate the factual background only to the extent necessary to address Plaintiff's Motion.

         On August 2, 2018, Plaintiff, acting pro se, filed a Motion for an Ex Parte Temporary Restraining Order or Preliminary Injunction which sought to enjoin Defendants' foreclosure on her home and to preserve evidence. See generally (Doc. # 6). This Court denied Plaintiff's Motion, and Plaintiff appealed that decision. (Doc. ## 71, 73.)

         Subsequently, Magistrate Judge Crews issued a Recommendation in which he concluded, inter alia, that this Court should grant in part and deny in part Defendants PNC Financial Services Group, Inc., PNC Bank, N.A., and PNC Mortgage's (“Defendants”) Motion to Dismiss Plaintiff's Amended Complaint. (Doc. # 92 at 28-29.) On August 30, 2019, this Court affirmed the Recommendation after conducting a de novo review of Plaintiff's objections. (Doc. # 94.) Thus, the Court denied the Motion to Dismiss as to Plaintiff's breach of contract claim which is based on the theory that Defendants failed to properly apply and credit her loan payments. However, the Court granted the Motion to Dismiss as to as to the remaining claims in Plaintiff's Amended Complaint. (Id. at 6.)

         On September 10, 2019, Plaintiff filed a document titled Second Amended Notice of Appeal (Doc. # 97) regarding this Court's August 30 Order. Additionally, on September 12, 2019, Plaintiff filed a Motion for Reconsideration of the same Order. (Doc. # 96.)

         II. DISCUSSION

         Before proceeding to the merits of Plaintiff's Motion for Reconsideration, the Court must consider its jurisdiction because Plaintiff has filed multiple notices of appeal in this case. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1276 (10th Cir. 2001) (“A federal court has an independent obligation to examine its own jurisdiction.”).

         A. THIS COURT RETAINS JURISDICTION

         1. Applicable Law

         “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.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). However, the Tenth Circuit has held that:

Because this divestiture of jurisdiction is subject to abuse and can unreasonably delay trial, we recognized in Stewart v. Donges, 915 F.2d 572 (10th Cir. 1991) a procedure by which a district court may maintain jurisdiction [in] a [case] if the court certifies that [an] appeal is frivolous.

Langley v. Adams Cnty., Colo., 987 F.2d 1473, 1477 (10th Cir. 1993). Specifically, “to regain jurisdiction, [a district court] must take the affirmative step of certifying the appeal as frivolous or forfeited . . . .” Stewart, 915 F.2d at 577. An appeal is frivolous if “the result is obvious or . . . the appellant's arguments are wholly without merit.” Barnes v. Sec. Life of Denver Ins. ...