Opinion
Case No. 97-4041-SAC.
January 3, 2002.
MEMORANDUM AND ORDER
This case comes before the court on the following motions: plaintiff's motion for order denying defendant's motion for stay pending appeal (Dk. 193), plaintiff's motion to strike defendant's notice of appeal (Dk. 197), plaintiff's motion to enforce court orders (Dk. 201), and plaintiff's supplemental motion to enforce court orders (Dk. 202).
I. Motion to Deny Stay
In this motion, plaintiff asks the court to deny defendant's motion to stay operation or enforcement of the judgment pending appeal. The court has already ruled on defendant's motion to stay (Dks. 196, 198), and plaintiff's motion is thus moot. Plaintiff's motion states no reason warranting the court's reconsideration of its prior ruling.
II. Motion to Strike
Plaintiff next asks the court to strike defendant's notice of appeal (Dk. 190), and defendant's motion for stay (Dk. 191), because defendant did not serve her with the required copies of those motions. Plaintiff did respond, however, to the merits of defendant's motion for stay ( see Dk. 192, 193) prior to the court's ruling on that issue (Dk. 196), and admits that she received a copy of defendant's notice of appeal from the clerk three days after it was filed. (Dk. 197.) Plaintiff has therefore not suffered substantial prejudice from defendant's alleged failure to serve her.
The filing of a timely and sufficient notice of appeal divests the district court of authority to proceed on any matter involved in the appeal. Lancaster v. Independent School Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998). Only when the notice of appeal is clearly invalid or deficient may a district court ignore a notice of appeal and retain jurisdiction. See Arthur-Anderson Co. v. Finesilver, 546 F.2d 338, 340-41 (10th Cir. 1976) (finding that it may be necessary for district courts to use their discretion and ignore clearly deficient notices of appeal to prevent litigants from intentionally depriving courts of jurisdiction at "any and every critical juncture.") Even in those unusual circumstances in which a district court retains jurisdiction, only the appellate court possess the power to strike a notice of appeal. Id.
This case is not at a critical juncture, and defendant's notice of appeal is not clearly deficient, thus the court sees no justification for retaining jurisdiction. The validity of plaintiff's notice of appeal shall be decided, if at all, by the United States Court of Appeals for the Tenth Circuit.
III. Motion to Enforce Court Orders
This court has continuing jurisdiction to address a motion to enforce the court's previous equitable orders. See Tyler v. City of Manhattan, 118 F.3d 1400, 1402 n. 1 (10th Cir. 1997) (district court necessarily retained jurisdiction over parties until they complied with the terms of injunctive order even though injunctive order appealed).
Plaintiff's motion raises numerous issues regarding defendant's alleged failure to comply with this court's previous orders regarding plaintiff's reinstatement. Curiously, defendant filed no response to plaintiff's initial motion. (Dk. 201). The court believes the issues raised by plaintiff in her original and supplemental motions (Dk. 201 202) are serious, and warrant a substantive and detailed response.
The defendant shall thus file such a response by January 16, 2002 to each issue raised by the plaintiff, with whatever documentation defendant deems necessary. Although the court is loathe to involve itself in minesterial details ordinarily resolved by communication between personnel officers and the parties themselves, the court will thereafter consider whatever means it deems necessary to resolve the pending issues and bring this stage of the case to a conclusion, including issuance of a show cause order why defendant should not be found in contempt of the court's order regarding reinstatement of the plaintiff.
IT IS THEREFORE ORDERED that plaintiff's motion for order denying defendant's motion for stay pending appeal (Dk. 193) is denied as moot; that plaintiff's motion to strike defendant's notice of appeal (Dk. 197) is denied; and that plaintiff's motions to enforce court orders (Dks. 201 202) are taken under advisement.
IT IS FURTHER ORDERED that defendant shall file a detailed and substantive response to plaintiff's motions (Dks. 201 and 202) by January 16, 2002.