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Albra v. Finance

United States District Court, D. Nevada

March 13, 2018

SAMI ALBRA, Plaintiff,
v.
SELENE FINANCE, et al., Defendants.

          ORDER (MOT. RECONSIDERATION - ECF NO. 13)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         BACKGROUND

         Mr. 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).

         Mr. 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, 2018.

         On 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, [1] 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.

         Mr. 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.

         On 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.

         DISCUSSION

         I. Jurisdiction

         As an 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.

         In 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)).

         Here, 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.[2] Additionally, filing the Petition does not destroy this court's jurisdiction. The court therefore has jurisdiction to consider the merits of the motion.

         II. Mr. Albra's Motion ...


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