Free Order on Motion for Miscellaneous Relief - District Court of California - California

Case 3:07-cv-04699-SI

Document 21

Filed 06/26/2008

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Hung Ha has filed a motion requesting that the Court permit him to resume his lawsuit after paying the $350 filing fee. The Court previously granted plaintiff's request to proceed in forma pauperis but dismissed his complaint without leave to amend. After plaintiff moved to set aside the order of dismissal, the Court reaffirmed that plaintiff's complaint had been dismissed and explained that no further motions for reconsideration would be entertained. Plaintiff now asks that the Court permit plaintiff to proceed with his lawsuit because plaintiff plans to pay the filing fee. The Court declines to do so for three reasons. First, as stated in the January 29, 2008 Order, the Court will not consider any further motions for reconsideration, and plaintiff's motion essentially asks the Court to reconsider its dismissal of his complaint. Second, plaintiff has appealed the dismissal of his complaint to the Ninth Circuit, largely divesting this Court of jurisdiction over his case. See Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997) ("As a general rule, the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal."); see also Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001). Finally, the Court notes that it has already found that plaintiff's complaint "fails to state a claim upon which relief can be granted and is frivolous," December 19, 2007 v. KENNETH BURR, et al., Defendants. / HUNG HA, Plaintiff, No. C 07-04699 SI ORDER DENYING PLAINTIFF'S APPLICATION TO PROCEED AT PLAINTIFF'S OWN EXPENSE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case 3:07-cv-04699-SI

Document 21

Filed 06/26/2008

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Order at 3, and thus does not see how it would make any difference whether defendant were to pay his filing fee now or continue to proceed in forma pauperis. For these reasons, plaintiff's motion is DENIED.

IT IS SO ORDERED.

Dated: June 26, 2008 SUSAN ILLSTON United States District Judge

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