The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
Before the Court is Plaintiff's motion for relief from final judgment pursuant to Federal Rule of Civil Procedure 60(b). Plaintiff challenges Judge Malcolm Muir's order granting Defendants' motion for summary judgment on Plaintiff's 28 U.S.C. § 1983 claim alleging Defendants used excessive force when arresting Plaintiff.*fn1 For the reasons explained herein, the Court will deny Plaintiff's petition.
Plaintiff David Baker filed a pro se complaint on April 25, 2008, against Ken Moore, James Douglas, Brian Womer, Stephen Sorage, Trent Peacock, and Timothy Miller, all members of the Lycoming County Drug Task Force. (Doc. No. 1.) Plaintiff's complaint alleged that on July 20, 2006, his apartment was raided by the drug task force and that during the raid he was beaten and pistol whipped by the members of the task force. (Id. at 4.) Judge Muir construed the complaint as asserting 28 U.S.C. § 1983 claims against the officers. (Doc. No. 25.) On January 7, 2009, Judge Muir granted Defendants' motions to dismiss Plaintiff's claims against all Defendants with the exception of James Douglas and Timothy Miller. (Doc. No. 30.) On April 1, 2009, the remaining Defendants filed a motion for summary judgment. (Doc. No. 36.) Defendants filed a brief in support on April 14, 2009. (Doc. No. 38.) Judge Muir granted Plaintiff an extension to file a brief in opposition to Defendants' motion. (Doc. No. 41.) On June 19, 2009, Plaintiff filed his own motion for summary judgment, statement of undisputed facts, and a supporting brief. (Doc. Nos. 43-45.) Defendants responded on July 6, 2009 (Doc. No. 46), with what Judge Muir construed as a brief in opposition to Plaintiff's motion. (Doc. No. 50.)
Judge Muir withheld ruling on the motions for approximately three months due to Plaintiff's assertion in his statement of undisputed facts that he would be providing an additional exhibit. (Doc. Nos. 45 at 1; 53 at 3.) Plaintiff never filed his final exhibit. (Doc. No. 53 at 3.) On August 25, 2009, Judge Muir granted Defendants' motion for summary judgment and denied Plaintiff's motion for summary judgment. (Doc. No. 53.) Judge Muir found that Defendants' recitation of material facts was supported by numerous exhibits and was uncontradicted. (Doc. No. 53 at 9.) Plaintiff did not present any evidence of record to support his position. (Id. at 10.) Moreover, Judge Muir noted "that the only document which may be construed as a sworn statement submitted by [Plaintiff] is the 'Affidavit' attached to his motion for summary judgment. There are no material facts set forth in either the affidavit or the motion itself." (Id.)
On August 25, 2010, exactly one year after the motion for summary judgment was entered, Plaintiff filed an untimely notice of appeal pursuant to Federal Rule of Appellate Procedure 3(a)(1)*fn2 and a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).*fn3 (Doc. No. 65.)
Defendants first argue that this Court has no jurisdiction to rule on Plaintiff's motion because Plaintiff filed a concurrent appeal with the Third Circuit. (Doc. No. 69 at 3.) Defendants are correct in their assertion that, as a general matter, once a timely notice of appeal has been filed the district court no longer has jurisdiction of a case. Bensalem Twp. V. Int'l Surplus Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994). However, the Third Circuit has also instructed that where notice of appeal is not timely, the notice of appeal does not divest a district court of jurisdiction. Mondrow v. Fountain House, 867 F.2d 798, 800 (3d Cir. 1987) ("We recognize that the district court may be reluctant to proceed when, in order to do so, it must in effect determine that the court of appeals has no jurisdiction. Nevertheless, such a procedure has the salutary effect of avoiding delay at the trial level during the pendency of an ineffective appeal.").
Fed. R. App. P. 4(a)(1) addresses timing for filing an appeal in a civil case and provides in pertinent part:
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.
(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.
Where Petitioner's notice of appeal from a decision on the merits is untimely, the Court of Appeals lacks jurisdiction to review the decision on the merits because the taking of an appeal within the prescribed time is mandatory and jurisdictional. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988)(citing Fed. R. App.Proc. 2, 3(a), 4(a)(1), 26(b); United States v. Robinson, 361 U.S. 220, 229 (1960); Farley Transp. Co. v. Sante Fe Trail Transp. Co., 778 F.2d 1365, 1368-70 (9th Cir. 1985)).In this case, judgment was entered against Plaintiff on August 25, 2009. (Doc. No. 54.) Therefore, under Rule 4, Plaintiff had until September 24, 2009 to file a notice of appeal with the Third Circuit. See Fed. R. App. P. 4(a)(1)(A). Plaintiff did not file a notice of appeal until August 25, 2010, one year after the order granting Defendants' motion for summary judgment was entered. As such, because Plaintiff's notice of appeal was untimely, the Third Circuit lacks jurisdiction to review Judge Muir's decision on the merits. See Budinich, 486 U.S. at 203.
Furthermore, even if notice of direct appeal were timely filed, this Court retains jurisdiction for the purposes of: (1) deferring consideration of the motion; (2) denying the motion; or (3) informing the court of appeals that it would grant the motion if that court would remand the case for that purpose. Fed. R. Civ. P. 62.1(a). ...