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Murray v. Stan's BBQ

July 10, 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 Murray's Motion to Appeal, in which Plaintiff seeks permission to late-file her appeal of this Court's dismissal of her action.

I. BACKGROUND

On January 23, 2007, the Court entered an order dismissing Plaintiff's complaint without prejudice. [Court Doc. No. 25.] Also on January 23, 2007, the Clerk entered a judgment reflecting the Court's dismissal of Plaintiff's complaint. [Court Doc. No. 26.] Thereafter, 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. 28.]

The Court previously took Plaintiff's instant motion under consideration and entered an order concluding that Plaintiff did not timely file her appeal under Federal Rule of Appellate Procedure 4(a)(1)(A) and was not entitled to an extension of time to file the notice of appeal under Rule 4(a)(5). [Court Doc. No. 35.] The Court's previous order left open the question of whether Plaintiff had made a sufficient argument to reopen the time to file an appeal under Rule 4(a)(6), and the Court referred Plaintiff's Motion to Appeal to U.S. Magistrate Judge Dennis H. Inman for a report and recommendation regarding the applicability of Rule 4(a)(6).

Magistrate Judge Inman held an evidentiary hearing on June 20, 2007, and issued his report and recommendation on June 21, 2007. [Court Doc. No. 45.] After the Court's previous order, two main questions were left open regarding the Rule 4(a)(6) analysis:

(1) whether Plaintiff received notice of the entry of the judgment within 21 days after entry and (2) whether any party would be prejudiced by reopening the time to file an appeal. With respect to the first question, Magistrate Judge Inman concluded that Plaintiff had not proved by a preponderance of the evidence that she did not receive notice of the judgment within 21 days of its entry. With respect to the second question, Magistrate Judge Inman concluded that Defendants had not proved by a preponderance of the evidence that they would be prejudiced by the reopening of the time to file an appeal. Because Plaintiff did not meet her burden of proof with respect to the first question, Magistrate Judge Inman reported that the requirements of Rule 4(a)(6) have not been satisfied.

On June 25, 2007, Plaintiff filed an objection to Magistrate Judge Inman's report and recommendation, which she titled a "Response and Appeal." [Court Doc. No. 36.] In such objection, Plaintiff challenges Magistrate Judge Inman's conclusion that Plaintiff did not prove by a preponderance of the evidence that she did not receive notice of the judgment within 21 days of its entry.

II. STANDARD

This Court must conduct a de novo review of those portions of the report and recommendation to which an objection is made and may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1)(C).

III. ANALYSIS

At the outset, the Court will attempt to answer two questions posed by Plaintiff in her objection related to Magistrate Judge Inman's reference to the Court's Notices of Electronic Filing issued with respect to the memorandum and order and the judgment entered in this case. Magistrate Judge Inman noted in his report and recommendation that the Notices of Electronic Filing accompanying those documents read, in pertinent part, as follows:

2:06-cv-89 Notice has been delivered by other means to:

Mary Murray 103 Raymond Road Greeneville, TN 37745 With respect to this quotation, Plaintiff first asks what the "other means" are by which notice was delivered to Plaintiff. The Court answers as follows: the "other means" were by U.S. mail. Since the placement of the Court's files online, the default method of delivery of filed documents is by electronic mail. However, with respect to both pro se litigants and attorneys without access to electronic mail, ...


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