United States District Court, D. Colorado
ORDER OVERRULING PLAINTIFF'S OBJECTION TO
MAGISTRATE JUDGE CREWS' MINUTE ORDER AND DENYING
PLAINTIFF'S MOTION FOR RECONSIDERATION
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on Plaintiff Elet Valentine's
filings titled Objection to Magistrate October 2, 2019 Minute
Order [ECF#102] and Objection to Order Certifying Appeal as
Frivolous and Denying Plaintiff [sic] Motion for
Reconsideration [ECF#103]. (Doc. ## 104, 106.) The Court
construes the later filing (Doc. # 106) as a Motion for
Reconsideration. Based on the following reasons, the Court
overrules Plaintiff's Objection to Magistrate Judge
Crews' Minute Order and denies Plaintiff's Motion for
Reconsideration.
I.
ANALYSIS
Plaintiff's
Objection and Motion for Reconsideration are based on the
same premise: Plaintiff argues that this Court has been
divested of jurisdiction in this case due to Plaintiff's
multiple notices of appeal. See (Doc. # 104 at 3-5;
Doc. # 106 at 3-7). However, as this Court has previously
explained, Plaintiff's argument is erroneous.
Plaintiff's initial notice of appeal did not divest this
Court of jurisdiction because the appeal relates to a motion
for a preliminary injunction. Free Speech v. Fed.
Election Comm'n, 720 F.3d 788, 791 (10th Cir. 2013);
see also (Doc. # 103 at 4; Doc. # 94 at 5; Doc. # 92
at 3 n.1).
Additionally,
Plaintiff's latest appeal did not divest this Court of
jurisdiction because it relates to a non-final order. (Doc. #
103.) However, Plaintiff argues that an “Exception to
Finality” applies.[1] (Doc. # 106 at 6.) That is incorrect.
In
general, federal circuit courts have jurisdiction to review
only “final decisions” of district courts. 28
U.S.C. § 1291; New Mexico v. Trujillo, 813 F.3d
1308, 1316 (10th Cir. 2016). “A ‘final
decision' is ordinarily one that ‘ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment.'” Jackson v. Los
Lunas Cmty. Program, 880 F.3d 1176, 1189 (10th Cir.
2018) (citation omitted). “Put differently, a final
decision is one by which the district court dissociates
itself from a case.” Id. (internal quotation
marks omitted). “The critical determination as to
whether an order is final is whether [the] plaintiff has been
effectively excluded from federal court under the present
circumstances.” Spring Creek Expl. & Prod. Co.,
LLC v. Hess Bakken Inv., II, LLC, 887 F.3d
1003, 1015 (10th Cir. 2018) (quoting Amazon, Inc. v. Dirt
Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001)). As
the Supreme Court recently reiterated, “finality is to
be given a practical rather than a technical
construction.” Id. (quoting Microsoft
Corp. v. Baker, 137 S.Ct. 1702, 1712 (2017)).
In the
instant case, not all of Plaintiffs claims have been
dismissed. (Doc. # 103 at 4; Doc. # 94 at 6.) Therefore,
Plaintiff has not “been effectively excluded from
federal court under the present circumstances.”
Spring Creek, 887 F.3d at 1015 (quoting
Amazon, 273 F.3d at 1275). Accordingly, because
there is still a claim to be litigated, the Order at issue
(Doc. # 94) is not final and may not be
appealed.[2]
II.
CONCLUSION
Based
on the foregoing, Plaintiffs Objection (Doc. # 104) to
Magistrate Judge Crews' Minute Order is OVERRULLED. It is
FURTHER
ORDERED that Plaintiffs Motion for Reconsideration (Doc. #
106) is DENIED.
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Notes:
[1] The exception to which Plaintiff
refers appears to be based on the 10th Circuit's ruling
in Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271
(10th Cir. 2001). There, the Tenth Circuit held that
“[a]lthough a dismissal without prejudice is usually
not a final decision, where the dismissal finally disposes of
the case so that it is not subject to further proceedings in
federal court, the dismissal is final and appealable.”
Id. at 1275. However, that ruling is not applicable
to the instant case because not all of Plaintiff's claims
have been dismissed. Thus, the case is subject to further
proceedings in this Court. Accordingly, the Order at issue is
neither final nor appealable.
[2] The Court notes that Plaintiff failed
to appear at a status conference in this case on October 1,
2019. The Court reiterates Magistrate Judge Crews'
cautionary statement that, pursuant to Rule 41 of the Federal
Rules of Civil Procedure, courts may “dismiss actions
sua sponte for a plaintiff's failure to
prosecute or comply with procedural rules or court
orders.” (Doc. # 102 at 1) (citing Link v. Wabash
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