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Murray v. Stan's BBQ

June 1, 2007

MARY MURRAY, PLAINTIFF,
v.
STAN'S BBQ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Mattice

MEMORANDUM AND ORDER

Before the Court is Plaintiff's Motion to Appeal, in which Plaintiff seeks permission to late-file her appeal of this Court's dismissal of her action.

I. BACKGROUND

Plaintiff filed her complaint in this action on May 9, 2006. [Court Doc. No. 3.] On August 31, 2006, Defendants filed a Motion to Dismiss and/or Motion for Summary Judgment. [Court Doc. No. 18.] On January 23, 2007, the Court granted Defendants' Motion to Dismiss and/or Motion for Summary Judgment and dismissed Plaintiff's complaint without prejudice for lack of subject matter jurisdiction. [Court Doc. No. 25.] Also on January 23, 2007, the Clerk entered a judgment in this action reflecting the Court's dismissal of Plaintiff's complaint. [Court Doc. No. 26.] The Notice of Electronic Filing associated with the judgment indicates that such judgment was sent by mail to Plaintiff at the address provided by her. There is no indication in the record that such mailing was returned by the post office. On May 16, 2007, Plaintiff filed the instant motion, seeking permission to late-file her appeal, claiming that she did not receive notice of the entry of judgment in this case until May 10, 2007. [Court Doc. No. 29.]

II. ANALYSIS

Federal Rule of Appellate Procedure 4 governs the time for appealing a district court's judgment. Rule 4(a)(1)(A) provides as follows:

In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

Fed. R. App. P. 4(a)(1)(A). In this instance, the judgment from which Plaintiff wishes to appeal was entered on January 23, 2007. The notice of appeal in this action was filed on May 16, 2007. Accordingly, it is evident that such notice of appeal was not filed within 30 days after the judgment was entered. Thus, it is necessary to determine whether one of the listed exceptions is applicable in this instance.

Rule 4(a)(1)(B) relates to notices of appeal filed in actions in which the United States or one of its officers or agencies is a party and is inapplicable to this case. Rule 4(a)(4) relates to the effect of the filing of several enumerated motions on the time to file a notice of appeal. None of the enumerated motions were filed in this case, so this portion of Rule 4 likewise is inapplicable to this case. Rule 4(c) relates to notices of appeal filed by inmates and also is inapplicable to this case. Accordingly, under Rule 4(a)(1)(A), Plaintiff did not timely file her notice of appeal.

Under Rule 4(a)(5), however, if a party fails to timely file a notice of appeal,

[t]he district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

Fed. R. App. P. 4(a)(5)(A). Thus, in order for a motion for extension of time to be granted under Rule 4(a)(5), the motion must be filed within 30 days after the time prescribed under Rule 4(a) expires. As discussed above, since none of the exceptions listed in Rule 4(a)(1)(A) apply, the time prescribed under Rule 4(a) for the filing of a notice of appeal in this case is 30 days. As a result, in order for Plaintiff to be eligible for relief under Rule 4(a)(5), the motion for extension of time must have been filed within 30 days after the original 30 days expired-or, in other words, within 60 days after the entry of judgment. Judgment was entered on January 23, 2007, and the motion for extension of time was filed on May 16, 2007; thus, it is clear that the motion was not filed within 60 days after the entry of judgment. Accordingly, the Court may not grant an extension of time to file the notice of appeal pursuant to Rule ...


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