United States District Court, E.D. Kentucky, Southern Division, London
LARRY R. BAILEY, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Larry Bailey has filed a Notice of Appeal [Record No. 50],
seeking to challenge the magistrate judge's order
concerning the scope of discovery. [Record No. 36].
“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.” Taylor v. KeyCorp, 680 F.3d 609, 616
(6th Cir. 2012) (quoting Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58 (1982)). However, federal
courts of appeals may only review “final
decisions” of the district courts. 28 U.S.C. §
1291; Mitchell v. Forsyth, 472 U.S. 511, 524 (1985).
This rule prevents piecemeal appeals, which would undermine
efficient judicial administration. In re Jackson Masonry,
LLC, 906 F.3d 494, 498 (6th Cir. 2018) (citing
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106
order Bailey seeks to challenge is not a final decision
because it does not “end the litigation on the merits
and leave nothing for the court to do but execute the
judgment.” See Network Comms. v. Mich. Bell. Tel.
Co., 906 F.2d 237, 238 (6th Cir. 1990) (quoting
Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 497
(1989)). The decision also does not fall within the small
class of collateral rulings that are deemed final because
they are effectively unreviewable on appeal from the final
judgment in the underlying action. See Mohawk Indus.,
Inc., 558 U.S. at 106 (citing Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949)). In other
words, Bailey has not shown any reason that he should not
wait until the conclusion of this matter to seek review in
the court of appeals. Accordingly, an appeal at this time is
frivolous and does not divest this Court of jurisdiction.
See Duru v. Mitchell, 289 F.Supp.3d 112, 115 (D.D.C.
was required to file any motion for leave to engage in
discovery on or before December 15, 2018. [Record No. 36] On
December 13, 2018, he filed his notice of appeal and a motion
for the discovery deadline to be “put on hold . . . or
extended” pending “further action upon
appeal.” [Record No. 51] As previously explained, the
notice of appeal is improper at this time, so the matter will
not be stayed pending appeal. However, Bailey requested an
extension prior to the deadline for filing a motion for leave
to engage in discovery. See Fed. R. Civ. P. 6(b).
Although he did not provide good reasons for the request, a
brief extension will be granted under the circumstances.
Bailey has filed a motion to strike the defendant's
Answer. [Record No. 44] He contends that the Answer, filed
following the Sixth Circuit's decision reversing this
Court's order granting the defendant's motion to
dismiss, is 307 days late. However, the Sixth Circuit's
decision places the parties in the position they would have
been had the motion to dismiss been denied in the first
instance. Federal Rule of Civil Procedure 12(a)(4) provides
that, unless the court sets a different time, a responsive
pleading must be served within 14 days of notice of the
denial of a motion to dismiss. In this case, the magistrate
judge extended the filing deadline to November 15, 2018, and
the Answer was filed by that date.
also claims generally that the defenses asserted in the
Answer are “immaterial and redundant” because the
Sixth Circuit has already rejected them. [Record No. 44, p.
2] Bailey has neither identified the defenses he believes
have already been rejected nor has he made any effort at
developed argumentation. Accordingly, the Court declines to
strike any portion of the Answer.
extent Bailey argues that the defendant has improperly named
defendants who were not named in the Complaint, Rule 25(d) of
the Federal Rules of Civil Procedure provides that
“[a]n action does not abate when a public officer who
is a party in an official capacity dies, resigns of otherwise
ceases to hold office while the action is pending. The
officer's successor is automatically substituted as a
party. Later proceedings should be in the substituted
party's name, but any misnomer not affecting the
party's substantial rights must be disregarded.”
There is no suggestion that the defendant's Answer names
any defendants other than current public officers sued in
their official capacities.
on the foregoing, it is hereby
Plaintiff's motion to strike the Answer [Record No. 44]
Plaintiff's motion to extend time to file a motion for
leave to engage in discovery [Record No. 51] is
GRANTED, in part. Plaintiff Bailey shall
file any motion for leave to engage in discovery on
or before Wednesday, December 26, 2018. The ...