CLD-129 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1133
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JAY L. THOMAS,
Appellant
v.
NORTHEASTERN UNIVERSITY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil No. 2-11-cv-03905)
District Judge: Honorable William J. Martini
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 1, 2012
Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: March 26, 2012)
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OPINION
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PER CURIAM
Appellant Jay Thomas, proceeding pro se, appeals an order of the United States
District Court for the District of New Jersey denying his motions to amend his complaint
against Northeastern University and his motions for default judgment. For the reasons
that follow, we will affirm the judgment of the District Court.
Thomas filed a complaint against Northeastern University claiming breach of
contract and breach of fiduciary duty in connection with his tuition balance. The District
Court reviewed Thomas’ complaint pursuant to 28 U.S.C. § 1915(e) and dismissed it,
concluding that he failed to state a claim for breach of fiduciary duty and that his breach
of contract claim did not satisfy the amount in controversy requirement for diversity
jurisdiction. We affirmed the judgment of the District Court on appeal. See C.A. No. 11-
3225.
While his appeal was pending, Thomas filed in District Court two motions for
leave to amend his complaint and two motions for default judgment. The District Court
denied the motions, explaining that Thomas’ appeal of the order dismissing his complaint
had divested the District Court of jurisdiction. The District Court ordered that Thomas
cease filing similar motions pending the resolution of his appeal. This appeal followed.
As recognized by the District Court, the filing of Thomas’ notice of appeal
conferred jurisdiction on this Court and divested the District Court of its control over
those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982) (per curiam); Venen v. Sweet, 758 F.2d 117, 120 (3d Cir.
1985). A lower court may proceed in a case where an appeal is taken from a non-
appealable order, but this exception does not apply here because the order dismissing
Thomas’ original complaint was appealable. See Sweet, 758 F.2d at 121.
2
A lower court also has the power pursuant to Federal Rule of Appellate Procedure
4(a)(4) to decide a timely filed motion for reconsideration, see id. at 122, but Thomas’
motions, even if they could be construed as motions for reconsideration, were not timely
filed for purposes of Rule 4(a)(4). Finally, the District Court had the power to consider
and deny, or certify to this Court its inclination to grant, a timely motion pursuant to
Federal Rule of Civil Procedure 60(b). See id. at 123. Thomas, however, did not invoke
Rule 60(b) in seeking to file an amended complaint nor is there any indication he could
have satisfied Rule 60(b) had his filing been construed as a Rule 60(b) motion.
Accordingly, because this appeal does not raise a substantial question, we will
affirm the judgment of the District Court. 1
1
The District Court treated Thomas’ December 7, 2011, filing, styled as a petition for a
writ of mandamus, as a motion for default judgment. Thomas was not prejudiced by the
District Court’s treatment of the filing as a motion for default judgment. Thomas appears
to have sought a default judgment on his amended complaint, but, as discussed above, he
was not given leave to file that complaint. Thomas filed a mandamus petition in this
Court seeking the same relief, which was denied. See C.A. No. 11-4498.
3