United States District Court, D. Arizona
Russel Holland United States District Judge
for Disbursement; Motion to Compel
enters a claim on the remaining proceeds of the sale of the
subject property and requests disbursement of the remaining
proceeds. This motion is opposed by the Bigley
defendants and they assert a counterclaim against
plaintiff's attorneys. The Bigley defendants also move to
compel production of certain documents. The motion to
compel is opposed. Oral argument has not been requested on
the pending motions and is not deemed necessary.
May 10, 2017 summary judgment order, the court determined
that the Bigley defendants' liability for federal income
taxes, interest, and penalties for the tax years 2004, 2005,
and 2006 was $261, 781.34, plus interest. The court also
determined that the Kelso defendants were nominees, alter
egos, and fraudulent transferees of the Bigley defendants
with respect to the real property located at 3115 East Park
Avenue, Gilbert, Arizona 85234 (“the subject
property”). Judgment was entered in plaintiff's
favor on May 10, 2017. The Bigley defendants filed a notice of
appeal on September 28, 2017.
September 14, 2017, the court entered an Order of Foreclosure
and Judicial Sale of the subject property. The subject
property was thereafter sold for $385, 000.00; and the
proceeds of the sale were deposited in the registry of the
court. The sale of the subject property was
confirmed on March 6, 2018, and funds were distributed to
plaintiff in satisfaction of plaintiff's
judgment. To date, $277, 670.92 of the funds
deposited in the court registry have been distributed. $107,
329.08 remain in the court registry.
now enters a claim on the remaining proceeds on the basis
that the Bigley defendants have unpaid federal taxes and
civil penalty assessments for the tax years 2007, 2008, and
2009. Plaintiff requests that the remaining funds in the
court registry be distributed to it as partial payment of the
Bigley defendants' tax liability for the 2007, 2008, and
2009 tax years.
out above, on September 28, 2017, the Bigley defendants filed
a notice of appeal. “‘The filing of a notice of
appeal is an event of jurisdictional significance-it confers
jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved
in the appeal.'” Rodriguez v. County of Los
Angeles, 891 F.3d 776, 790 (9th Cir. 2018) (quoting
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982)). “This rule is judge-made; its purpose is to
promote judicial economy and avoid the confusion that would
ensue from having the same issues before two courts
simultaneously.” Natural Resources Defense Council,
Inc. v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th
Cir. 2001). The funds that remain in the court registry are
involved in the Bigley defendants' appeal. Resolution of
issues on appeal may determine who is entitled to the
remaining funds. If the Bigley defendants prevail on their
appeal, they may be entitled to the funds that remain in the
court registry as well as to a refund of the funds that have
already been disbursed to plaintiff.
are a number of exceptions to the general rule that a
district court loses jurisdiction upon the filing of a notice
of appeal.” Stein v. Wood, 127 F.3d 1187, 1189
(9th Cir. 1997). “A district court may, for example,
retain jurisdiction to correct clerical errors or clarify its
judgment pursuant to Fed.R.Civ.P. 60(a).” Id.
“A district court may retain jurisdiction when it has a
duty to supervise the status quo during the pendency of an
appeal or in aid of execution of a judgment that has not been
superseded.” Id. (internal citation omitted).
“A district court may also retain jurisdiction by
statute.” Id. None of these exceptions apply
here. Rather, plaintiff seeks to have the court decide an
entirely new claim on the remaining funds in the court
the funds remaining in the court registry are involved in the
appeal taken by the Bigley defendants, the court presently
lacks jurisdiction to consider plaintiff's claim on the
remaining funds or to disburse said funds to plaintiff. For
the same reason, the court lacks jurisdiction to consider the
Bigley defendants' counterclaim.
motion for disbursement of the funds remaining
in the court registry is denied. The Bigley defendants'
counterlcaim is denied. The Bigley ...