United States District Court, D. Nevada
ORDER (MOT. RECONSIDERATION - ECF NO. 13)
A. LEEN, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on pro se Plaintiff Sami
Albra's Motion for Reconsideration (ECF No. 13) of the
Order (ECF No. 11) denying as moot his Application to Proceed
In Forma Pauperis (ECF No. 6). This Motion is
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
Albra commenced this civil action on January 4, 2018, by
filing a Complaint (ECF No. 1). This case arises from his
allegations that defendants violated state and federal laws
regulating mortgage loans and non-judicial foreclosure.
Although he did not file a motion for injunctive relief or
follow the Local Rules related to emergency motions, based on
Albra's pro se status, the emergency nature of the
filing, and the seriousness of a potential loss of a
dwelling, District Judge Andrew P. Gordon treated the
complaint as if it was accompanied by a request for
injunctive relief. Jan. 4, 2018 Order (ECF No. 3). Judge
Gordon denied injunctive relief without prejudice because
Albra failed to show a likelihood of success on the merits on
any of his claims. Id. Albra asked Judge Gordon to
reconsider his decision. Jan. 5, 2018 Mot. Reconsideration
(ECF No. 4). Judge Gordon denied his motion because it did
not offer sufficient reasons for him to reconsider the
earlier order. Jan. 8, 2018 Order (ECF No. 8).
Albra paid the $400 filing fee when he opened this case. Jan.
4, 2018 Receipt of Payment (ECF No. 1-2). The following day,
January 5, 2018, he filed an Application to Proceed In
Forma Pauperis (“IFP”) (ECF No. 6). Because
he paid the $400 filing fee when he opened this case, the
Clerk of the Court filed the Complaint on the docket and
immediately issued Summons (ECF Nos. 5, 10) before Albra
filed his IFP Application. Thus, the court did not screen the
Complaint as required for all litigants seeking permission to
proceed IFP. See 28 U.S.C. § 1915; Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc).
Albra filed an Amended Complaint (ECF No. 9) on January 29,
February 2, 2018, the court denied Mr. Albra's IFP
Application as moot. Order (ECF No. 11). Pursuant to Rule 4
of the Federal Rules of Civil Procedure,  Albra was ordered
to serve defendants with summons and the Amended Complaint
within 90 days of its filing. Id. That same day,
Albra filed a Motion for Refund of Filing Fee (ECF No. 12),
which the court also denied as moot. Order (ECF No. 15).
Albra subsequently filed the current Motion for
Reconsideration (ECF No. 13) of the Order (ECF No. 11)
denying his IFP Application as moot.
Albra filed a Notice of Appeal (ECF No. 14) on February 8,
2018. The Notice of Appeal was incorrectly entered on the
docket as an appeal of a magistrate judge order or ruling
pursuant to LR IB 3-1. Upon further review, the clerk's
office determined that it was intended to appeal the
undersigned's decision directly to the Ninth Circuit and
modified the docket entry to reflect the document's
purpose. However, by then, Mr. Albra had filed a Petition for
Writ of Mandamus (ECF No. 19) (“Petition”) with
the Court of Appeals for the Ninth Circuit, which was
docketed March 7, 2018. See Albra v. U.S. Dist. Ct.
Nev., No. 18-70641.
March 8, 2018, Defendants Selene Finance LP, Wilmington
Savings Fund Society, FSB, d/b/a Christiana Trust, filed a
Motion to Dismiss (ECF No. 20) the Amended Complaint for
failure to state a claim.
initial matter, the court must determine whether it has
jurisdiction to address Mr. Albra's Motion for
Reconsideration because he has submitted multiple filings
indicating his desire to appeal this court's decision on
the IFP Application to the Court of Appeals.
general, the filing of a notice appeal divests the district
court of jurisdiction over particular issues involved in that
appeal. Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (per curiam). However, the principle
of exclusive appellate jurisdiction is not absolute.
Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956
(9th Cir. 1983). A notice of appeal does not divest the
district court of jurisdiction when there is a motion for
reconsideration pending. United Nat. Ins. Co. v. R&D
Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (citing
Fed. R. App. P. 4(a)(4)(B)(i)). In addition, petitions for
extraordinary writs, such as a petition for a writ of
mandamus, “do not destroy the district court's
jurisdiction in the underlying case.” Nascimento v.
Dummer, 508 F.3d 905, 910 (9th Cir. 2007) (citing
Ellis v. U.S. Dist. Court, 360 F.3d 1022, 1023 (9th
Cir. 2004) (en banc)).
Mr. Albra filed his Motion for Reconsideration prior to
filing his Notice of Appeal. Because the motion was pending
when the Notice of Appeal was filed, the notice did not
divest this court of jurisdiction. He seems to acknowledge
this in his motion. Additionally, filing the Petition does not
destroy this court's jurisdiction. The court therefore
has jurisdiction to consider the merits of the motion.
Mr. Albra's Motion ...