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United States v. Fiorini

September 8, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GEORGE J. FIORINI, II, DEFENDANT.



The opinion of the court was delivered by: Michael R. Merz Chief United States Magistrate Judge

District Judge Thomas M. Rose

Chief Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This case is before the Court on Defendant's motion for relief from judgment under Fed. R. Civ. P. 60(b)(Doc. No. 130).

Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases which are within the judicial power of the United States as defined in the United States Constitution and as further granted to them by Act of Congress. Therefore there is a presumption that a federal court lacks jurisdiction until it has been demonstrated. Turner v. President, Directors and Co. of the Bank of North America, 4 U.S. 8, 4 Dall. 8, 1 L.Ed. 718 (1799). Facts supporting subject matter jurisdiction must be affirmatively pleaded by the person seeking to show it. Bingham v. Cabot, 3 U.S. 382 (3 Dall. 382), 1 L.Ed. 646 (1798). The burden of proof is on the party asserting jurisdiction if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83, 56 S.Ct. 780, 80 L.Ed. 1135 (1935). A federal court is further obliged to note lack of subject matter jurisdiction sua sponte. Ford v. Hamilton Inv. Co., 29 F.3d 255, 257 (6th Cir. 1994); In re Millers Cove Energy Co., Inc., 128 F.3d 449, 450 (6th Cir. 1997); Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 (6th Cir. 1992); Mansfield, C. & L M. Ry. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Sumner v. Mata, 449 U.S. 539, 548, n.2, 101 S.Ct. 764, 770, n.2, 66 L.Ed. 2d 722 (1981).

The caption of Defendant's motion acknowledges that this case is pending on appeal to the United States Court of Appeals for the Sixth Circuit. Examination of the docket confirms that the final judgment was appealed and the matter remains pending before the Court of Appeals. The filing of a timely and sufficient notice of appeal immediately transfers jurisdiction of all matters relating to the appeal from the district court to the court of appeals. It divests the district court of authority to proceed further with respect to such matters, except in aid of the appeal, or to correct clerical mistakes under Rule 60(a) of the Federal Rules of Civil Procedure or Rule 36 of the Federal Rules of Criminal Procedure, or in aid of execution of a judgment that has not been superseded, until the district court receives the mandate of the court of appeals. 9 Moore's Federal Practice ¶ 203.11 at 3-45 and 3-46. Marrese v. American Academy of Osteopathic Surgeons, 470 U.S. 373 (1985); Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993); Cochran v. Birkel, 651 F.2d 1219, 1221 (6th Cir. 1981); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993). The general rule means that a district court has no jurisdiction to rule on a motion for relief from judgment after a timely notice of appeal. Lewis v. Alexander.

Defendant is cautioned to consider whether the claims made in his motion can be brought on direct appeal. If they can and he omits them from the appeal, he may have procedurally defaulted in presenting them and be thereafter barred. Compare Yackle, POST-CONVICTION REMEDIES, §108 (1981), citing Mars v. United States, 615 F.2d 704 (6th Cir. 1980); Mathews v. United States, 11 F.3d 583 (6th Cir. 1993).

It is therefore respectfully recommended that the pending motion under Fed. R. Civ. P. 60(b) be denied without prejudice.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(e), this period is automatically extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir., 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed. 2d 435 (1985).

20060908

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