Commercial Litigation and Arbitration

Effective 12/1/09, the District Court Is Empowered to Rule Provisionally on Motions Filed after Notice of Appeal Is Filed

Once the notice of appeal is filed, jurisdiction generally passes from the district court to the court of appeals. Other than on certain non-merits related matters such as sanctions, the district court lacks authority to rule on almost any motions subsequently filed. New Rule 61.1, entitled, Indicative Ruling After Notice of Appeal Filed, takes effect on December 1, 2009, and it permits indicative rulings, requiring notice to the court of appeals if the district court may be inclined to provide relief or otherwise considers the issue that has been raised to be substantial. Rule 61.1 will provide:

(a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the Court may:

(1) defer considering the motion;

(2) deny the motion; or

(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.

(b) Notice to the Court of Appeals. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue.

(c) Remand. The district court may decide the motion if the court of appeals remands for that purpose.

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