Filing Frivolous Notice of Appeal Does Not Divest District Court of Jurisdiction — Dismissal without Leave to Amend but with Leave to Argue for Amendment Forecloses District Court Jurisdiction

From Chien v. Skystar Bio Pharm. Co., 2008 U.S. Dist. LEXIS 69084 (D.Conn. Sept. 11, 2008):

[A] Notice of Appeal does not divest the district court of jurisdiction in all cases. If a litigant files a "plainly unauthorized notice of appeal which confers on [the Court of Appeals] the power to do nothing but dismiss the appeal," the district court is not divested of jurisdiction. The question for the Court, then, is whether Mr. Chien's Notice of Appeal was "plainly unauthorized" or "frivolous" and thus, whether this Court retains jurisdiction over his Motion to Correct/Amend.

There is no question that an order granting a Motion to Dismiss a case in its entirely is a final decision under 28 U.S.C. § 1291. The Clerk of the Court entered Judgment [doc. # 72] on the docket sheet dismissing all claims against all Defendants. However, it is equally clear that "[a] dismissal with leave to amend is a non-final order and not appealable," Slayton v. American Express Co., 460 F.3d 215, 224 (2d Cir. 2006), unless the deadline for re-pleading has passed or the appellant explicitly disclaims intent to re-plead. See id. In this case, the Court decidedly did not give Mr. Chien leave to amend, but rather allowed Mr. Chien to file a motion to argue that he should be given leave to amend. The Court has found no case that addresses this exact situation. While expressing no opinion on whether or not the Court's July 17, 2008 Ruling and Order constitutes a final decision, the Court can say with certainty that the appeal is not "plainly unauthorized" or "frivolous." In view of that conclusion, the Court does not believe that it currently has jurisdiction to consider Mr. Chien's Motion to Correct/Amend [in light of his subsequently-filed notice of appeal].

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