Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Guttilla Murphy Anderson, P.C.

Guttilla Murphy Anderson, P.C.
Ariz. Firm No. 00133300

Alisan M. B. Patten (No. 009795) Ryan W. Anderson (No. 020974)
4150 West Northern Avenue Phoenix, Arizona 85051 Email: [email protected]

Phone: (623) 937-2795
Fax: (623) 937-6897

Attorneys for the Receiver

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Lawrence J. Warfield, Receiver, Plaintiff, v. Michael Alaniz, et al. ) ) ) ) ) ) ) ) ) ) )

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4150 West Northern Ave. Phoenix, Arizona 85051 (623) 937-2795

Cause No. CV 03-2390 PHX JAT REQUEST FOR RULING ON RECEIVER'S UNOPPOSED RULE 59 MOTION TO ALTER OR AMEND JUDGMENT

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Defendants.

The Receiver respectfully requests that the Court grant the relief requested by the Receiver in his Motion to Alter or Amend Judgment [Doc No. 582], for the reason that no response or opposition has been timely filed by the Defendants. On March 12, 2007, the Receiver filed his Motion to Alter or Amend Judgment, pursuant to Rule 59(e), Fed.R.Civ.P.1 This motion was timely filed.2

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The Receiver also requested relief alternatively under Rule 60, Fed.R.Civ.P.

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The judgment in this matter was signed and entered by the Clerk of the Court on February 28, 2007. Rule 6(a), Fed.R.Civ.P. applies to Rule 59 motions. See, Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995). As such, the deadline for filing a Rule 59 Motion in this matter was March 14, 2007.
Case 2:03-cv-02390-JAT Document 597 Filed 04/09/2007 Page 1 of 3

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Guttilla Murphy Anderson, P.C.

Subsequently, the Defendants prematurely filed a notice of appeal on March 30, 2007. The District Court retains exclusive jurisdiction of this case pending its decision on any timely filed Rule 59 Motion. See, Rules 4(a)(4)(A)(iv) and (vi); 4(a)(4)(B)(i), Fed.R.App.P.; Shapiro v. Paradise Valley Unified School District No. 69, 374 F.3d 857, 862-862 (9th Cir. 2004) holding that the filing of a timely Rule 59 motion, or a rule 60 motion filed within 10 days of the entry of judgment, tolls the time period for filing a notice of appeal; RTC v. Keating, 186 F.3d 1110, 1114 (9th Cir. 1999) holding a notice of appeal filed after the timely filing of a Rule 59 motion, but before the District Court had ruled on the Rule 59 motion, rendered the appeal ineffective. The Ninth Circuit Court of Appeals held in Schroeder v. McDonald, 55 F.3d 454, 458 (9th Cir. 1995) that: At the time the defendants filed their notice of appeal, Rule 4(a)(4) [Fed.R.App.P.] plainly stated that a notice of appeal filed during the pendency of a Rule 59 motion `shall have no effect.' In Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed. 2d 225 (1982) (per curiam), the Supreme Court held that a notice of appeal filed during the pendency of a Rule 59 motion is a nullity. [Cite omitted.] However, Rule 4(a)(4) was amended effective December 1, 1993, to provide that when a notice is prematurely filed, it shall be in abeyance and become effective upon the date of entry of an order disposing of the Rule 59(e) motion. See also, Leader National Ins. Co. v. Industrial Indemnity Insurance Co., 19 F.3d 444 (9th Cir. 1994). Accordingly, for the time being, the Defendants' premature notice of appeal is held in abeyance until the Court rules on the pending Rule 59 Motions.3 Because the deadline for responding to the Receiver's Motion to Alter or Amend Judgment has passed and the Defendants have not filed a response or opposition to the motion, the Receiver

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4150 West Northern Ave. Phoenix, Arizona 85051 (623) 937-2795

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The Defendant Richard also timely filed a Rule 59 Motion on March 12, 2007. Case 2:03-cv-02390-JAT Document 597 2 Filed 04/09/2007 Page 2 of 3

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Guttilla Murphy Anderson, P.C.

respectfully requests that the Court enter an order granting the relief previously requested by the Receiver or otherwise ruling on the motion. Respectfully submitted this 9th day of April, 2007. GUTTILLA MURPHY ANDERSON, P.C.

___s/Alisan M.B. Patten__________ Alisan M. B. Patten Attorneys for the Receiver

9 PROOF OF SERVICE
4150 West Northern Ave. Phoenix, Arizona 85051 (623) 937-2795

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This is to certify that on this 9th day of April, 2007, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants listed below; and that the persons listed below who are not registered participants of the CM/ECF System have been served with a copy of the foregoing document by first class mail this date.

s/Alisan M.B. Patten Alisan M.B. Patten Burton M. Bentley ECF Registered [email protected] Attorney for Defendants Leonard and Elizabeth Bestgen, Robert Carroll, Rudy and Mary Crosswell, Charles Davis, Richard Derk, Orville Frazier, Ronald Kerher, Dwight Lankford, John and Candes Rada, Paul Richards, and Patrick and Andrea Wehrly Steve A. Bryant Steve Bryant & Associates 3618 Mt. Vernon Street, Suite A Houston, TX 77006 Attorneys for Dwight Lankford
0758-011(61415)

Case 2:03-cv-02390-JAT

Document 597

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