United States District Court, D. Colorado
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.”
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