HARPER v. TRUMBULL

Case No. 5:07-cv-04191-RMW (EJD).

PAUL A. HARPER, Plaintiff, v. PATRICIA V. TRUMBULL, Defendant.

United States District Court, N.D. California, San Jose Division.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Civil Rights Act
Nature of Suit: 440 Civil Rights: Other
Source: PACER


Attorney(s) appearing for the Case

Paul A. Harper, Plaintiff, Pro Se.


ORDER RE: DOCUMENTS FILED ON MAY 11, 2017.

Re: Dkt. Nos. 72-77

EDWARD J. DAVILA, District Judge.

Plaintiff Paul A. Harper ("Plaintiff"), proceeding in propia persona, filed a series of documents on May 11, 2017, in this dismissed, closed action, including: (1) a "Notice of Motion and Motion Settlement Mediation" and supporting declaration (Dkt. Nos. 72, 73); (2) a "Notice of Motion and Motion Settlement Mediation Questionnaire" (Dkt. No. 74); (3) a proposed order on a settlement motion (Dkt. No. 75); (4) a purported "judgment" (Dkt. No. 76); and (5) a purported order permitting Plaintiff to proceed without paying fees and costs (Dkt. No. 77). These matters have been referred to the undersigned for general duty review upon the retirement of Judge Ronald M. Whyte.

The purpose of these documents is unclear. What is apparent, however, is they have no effect because nothing is pending to which they could apply. Notably, this action was dismissed without prejudice on October 9, 2007, after Plaintiff failed to pay the filing fee. Dkt. No. 17. Plaintiff's subsequent appeal was dismissed by the Ninth Circuit Court of Appeals on January 21, 2010, pursuant to Federal Rule of Appellate Procedure 42(b). Dkt. No. 25. Judge Whyte then issued orders denying Plaintiff's motions seeking fees and costs (Dkt. Nos. 28, 55). Plaintiff appealed from the second fees order, which proceeding the Ninth Circuit dismissed as frivolous on April 18, 2017. Dkt. No. 71. No issues were remanded to the district court, nor is there any need for post-appeal proceedings related to settlement.

Moreover, Plaintiff cannot receive fees or costs. As previously explained by Judge Whyte, judgment was entered against Plaintiff on October 9, 2007, and that judgment has not been disturbed. Dkt. No. 18. Filing a new judgment does not change that fact. Consequently, Plaintiff is still not the prevailing party and cannot recover costs under Federal Rule of Civil Procedure 54(d).

The motions filed on May 11, 2017 (Dkt. Nos. 72, 74) are DENIED. The Judgment filed that same date (Dkt. No. 76) is STRICKEN.

IT IS SO ORDERED.


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