Opinion
02 Civ. 1218 (KNF).
October 8, 2009
MEMORANDUM AND ORDER
INTRODUCTION
Before the Court is Kevin Brown's ("Brown" or "the plaintiff") motion, made pursuant to Fed.R.App.P. 4(a)(5), for an extension of time to file his notice of appeal from the (1) judgment, entered on January 29, 2008, after the conclusion of the jury trial held for this action, and (2) memorandum and order denying his motion for reconsideration, entered on August 5, 2009. Along with his motion, the plaintiff provides a handwritten letter, dated August 18, 2009, in which he requests that the Court be merciful to him, and explains that his delay in filing a post-trial motion or a notice of appeal timely, after the entry of judgment, was based upon his belief that the Court would "automatically send [to him] documentation on how the trial went." This explanation is curious given Brown's attendance in court on every day the trial was held and his presence in the courtroom, when the jury foreperson announced the verdict.
The defendant opposes the plaintiff's motion. He asserts the plaintiff's motion was filed without the times set forth in Fed.R.App.P. 4(a)(5) and (a)(6) for filing either a request for an enlargement of time to file a notice of appeal or a request to reopen the time to file a notice of appeal. Brown's motion is addressed below.
BACKGROUND AND PROCEDURAL HISTORY
On January 24, 2008, the jury trial held for this action concluded, resulting in a verdict for the defendant. The judgment was entered on the docket sheet, maintained by the Clerk of Court for this action, on January 28, 2008. Attached to the copy of the judgment, which was sent to the plaintiff by the Clerk of Court, was a letter informing the plaintiff that, pursuant to Fed.R.App.P. 4(a)(1), he was required to file a notice of appeal within thirty days of the date of entry of the judgment, if he determined to appeal from the judgment. In addition, the following forms were attached to the copy of the judgment: a "notice of appeal," a "motion for extension of time to file a notice of appeal," a "joint notice of appeal and motion for extension of time," and an "affirmation of service."
On April 3, 2009, the plaintiff filed a motion for reconsideration, pursuant to Fed.R.Civ.P. 60(b). Brown contended, through the motion, that the jury's verdict was improper, because the defendant: (1) violated his Fourteenth Amendment right to refuse medical treatment; and (2) committed battery, by performing a medical procedure on him, without his consent, while he was incarcerated. Addressing the delay in filing the reconsideration motion, the plaintiff maintained that, as a pro se litigant, he was "unaware of the common [p]rocedures that are normally done after [t]rial," and noted that he was aware that he had "waited for an extensive amount of time" to file his motion. The Court, by a memorandum and order, dated August 5, 2009, denied the plaintiff's motion, finding that he failed to establish "good cause" for either failing to file his motion timely, or for failing to meet his burden of demonstrating he was entitled to Rule 60 relief.
On August 18, 2009, the plaintiff filed a notice of appeal, along with a motion for an extension of time to file a notice of appeal. His motion seeking an extension of time to file his notice of appeal identifies the January 28, 2008 judgment and the August 5, 2009 memorandum and order, as the determinations from which he wishes to appeal. His notice of appeal names only the January 28, 2008 judgment as the order from which he seeks to appeal.
DISCUSSION
Federal Rule of Appellate Procedure 4(a)(1)(A) provides "[i]n a civil case . . . the notice of appeal . . . must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Judgment was entered on January 28, 2008. Therefore, Brown's time to file a notice of appeal has elapsed, unless he satisfies the criteria for obtaining an extension of time to file his notice of appeal or for reopening the time to file a notice of appeal set forth in Fed.R.App.P. 4(a)(5) and 4(a)(6).
Construing the plaintiff's notice of appeal liberally, and "taking the part[y's] intentions into account," Sahu v. Union Carbide Corp., 548 F.3d 59, 65 (2d Cir. 2008) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 [2d Cir. 1995]), the Court finds, based upon the plaintiffs motion for an extension of time, that Brown seeks to appeal from the January 2008 judgment and the August 2009 memorandum and order denying his motion for reconsideration. To the extent the plaintiff seeks an extension of time to file his notice of appeal from the Court's August 5, 2009 order, Brown's August 18, 2009 notice of appeal, from this order, was filed timely. See Fed.R.App.P. 4(a)(1)(A).
However, the plaintiff has not shown that he qualifies for an extension of time to file his notice of appeal, pursuant to Fed.R.App.P. 4(a)(5), from the January 2008 judgment. This is so, because Fed.R.App.P. 4(a)(5) creates a "grace period," during which a district court may extend the time for filing a notice of appeal if a "party so moves no later than 30 days after the time prescribed by this Rule 4(a)," which, in this case, is 30 days from entry of the judgment. Fed.R.App.P. 4(a)(5)(A)(i). Brown did not file his motion until more than 17 months had elapsed from the time his notice of appeal was due; accordingly, the time to seek an extension, under Rule 4(a)(5), has expired. See Cohen v. Empire Blue Cross and Blue Shield, 142 F.3d 116, 118 (2d Cir. 1998) (providing that the district court "lacks jurisdiction to grant any extension motion that is not filed within Rule 4(a)(5)'s 30-day `grace period'") (citations omitted).
Federal Rule of Appellate Procedure 4(a)(6) provides: "[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied: (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; (B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and (C) the court finds that no party would be prejudiced." Brown does not contend he did not receive a copy of the judgment, and more than 180 days have elapsed from entry of the judgment. In addition, the defendant maintains that he is prejudiced by the plaintiff's untimely motion, since he has relied upon the finality of the January 2008 judgment entered in his favor. In the circumstance of the instant case, the plaintiff does not qualify either for: (i) an extension of time to file his notice of appeal; or (ii) an order reopening the time to file his appeal.
Accordingly, the plaintiff's motion, Dkt. Entry No. 85, is denied.