United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Plaintiff's Motion for Extension of
Time (“Motion”) (Doc. 101), which was originally
styled as a Notice of Appeal (Doc. 96). The Court now rules
on the Motion.
an exception, the Federal Rules of Appellate Procedure
(“Rules”) provide that a “notice of appeal
required by Rule 3 must be filed with the district clerk
within 30 days after entry of the judgment or order appealed
from.” Fed. R. App. P. 4(a)(1)(A). Under Rule 4(a)(5),
“[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) . . . that party shows excusable neglect or good
cause.” Id. 4(a)(5)(A).
Plaintiff filed the pending Motion on January 17, 2019,
purporting to appeal the Court's Order (Doc. 94) dated
December 14, 2018. (Doc. 101 at 2). In the Motion, however,
Plaintiff states that “Plaintiff is requesting reversal
of summary judgment and [to] reopen [the] case.” The
Court issued its Summary Judgment Order (Doc. 82) granting
judgment in favor of Defendant and the Clerk of Court entered
judgment (Doc. 83) accordingly on July 16, 2018;
approximately six months before Plaintiff filed the pending
Motion. (Compare Doc. 82 with Doc. 101).
of which order Plaintiff seeks an extension of time to
appeal, Plaintiff failed to file the notice of appeal within
30 days of the entry of the order appealed from. See
Fed. R. App. P. 4(a)(1)(A). Additionally, Plaintiff failed to
request an extension of time to file a notice of appeal
regarding the Court's Summary Judgment Order (Doc. 82)
until well after 30 days following the time prescribed by
Rule 4(a) expired. See Id. 4(a)(5)(A)(i).
Accordingly, the Court must deny Plaintiff's motion
requesting permission to appeal the Court's Summary
Judgment Order (Doc. 82) because it lacks the authority to
grant Plaintiff's request. See Bowles v.
Russell, 551 U.S. 205, 213-14 (2007) (reasoning that
“the timely filing of a notice of appeal in a civil
case is a jurisdictional requirement” and a federal
court has “no authority to create equitable
exceptions” to the jurisdictional time limits for
extending the time to appeal set forth in Fed. R. App. P.
Plaintiff Fails to Show Excusable Neglect or Good
Plaintiff fails to show excusable neglect or good cause for
her untimely Motion to appeal this Court's Order (Doc.
94) dated December 14, 2018. Although Plaintiff filed the
pending Motion within the timeframe contemplated by Rule
4(a)(5)(A)(i) with respect to that Order (Doc. 94),
extensions of time are granted only in “extraordinary
cases where injustice would otherwise result.”
Murillo v. Ridge on Sedona Golf, No.
CV-04-0901-PHX-JAT, 2006 WL 8440335, at *1 (D. Ariz. June 28,
2006) (quoting Oregon v. Champion Int'l Corp.,
680 F.2d 1300, 1301 (9th Cir. 1982)). The United States
Supreme Court enumerated four factors to make this
determination: “(1) the danger of prejudice to the
non-moving party, (2) the length of delay and its potential
impact on judicial proceedings, (3) the reason for the delay,
including whether it was within the reasonable control of the
movant, and (4) whether the moving party's conduct was in
good faith.” Pincay v. Andrews, 389 F.3d 853,
855 (9th Cir. 2004) (citing Pioneer Investment Servs. Co.
v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395
(1993)). “[T]he determination is at bottom an equitable
one, taking account of all relevant circumstances surrounding
the party's omission.” Pioneer, 507 U.S.
the first two factors, granting Plaintiff's Motion could
“thwart the Rule's purpose of promoting finality of
judgments” and require Defendant to continue to respond
to motions needlessly prolonging litigation approximately six
months after a judgment (Doc. 83) was entered. State of
Or. v. Champion Int'l Corp., 680 F.2d 1300, 1301
(9th Cir. 1982). The Court previously denied several of
Plaintiff's motions to reopen the case or otherwise seek
reconsideration. (See Doc. 90 (Order denying Motion
to Set Aside Judgment filed on August 7, 2018 (Doc. 86) and
Motion for Miscellaneous Relief requesting reconsideration
filed on August 14, 2018 (Doc. 89)); Doc. 94 (Order denying
Motion for Reconsideration filed on December 3, 2018 (Doc.
93))). The Court's Order (Doc. 94) dated December 14,
2018 simply reaffirms the Court's earlier decisions.
(Doc. 94 at 1).
Plaintiff fails to demonstrates a sufficient reason for the
delay in filing the pending Motion and only refers to events
occurring months after the Court originally issued its Order
(Doc. 90) denying Plaintiff's motion to reopen the case.
While the Court does not yet discern bad faith by Plaintiff,
the record demonstrates that Plaintiff has not neglected or
otherwise been hindered in her efforts to file motions in
this Court. (See Doc. 94 at 1 n.1 (“Should
Plaintiff . . . continue to file duplicative and untimely
motions, Plaintiff may be subject to monetary sanctions)).
Accordingly, the Court finds that Plaintiff fails to show the
requisite excusable neglect or good cause to permit an
untimely notice of appeal under Rule 4(a)(5).
on the foregoing, IT IS ORDERED that
Plaintiff's Motion for Extension ...