Opinion
No. 2:20-cv-0108 WBS KJN P
02-01-2021
DWIGHT M. DEBOSE, Plaintiff, v. J. WEISS, et al., Defendants.
ORDER
Plaintiff filed a motion for an additional 45 days in which to file a notice of appeal. Plaintiff contends that he was in quarantine when he received the judgment and was unable to attend the law library. Once he was released from quarantine, plaintiff is only granted limited access to the law library.
Rules Governing Extension to Appeal
An appeal "from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4." Fed. R. App. P. 3(a)(1). The notice of appeal "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). However, the district court may extend the time to file a notice of appeal if "a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires," and "shows excusable neglect or good cause." Fed. R. App. P. 4(a)(5)(A). "No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later." Fed. R. App. P. 4(a)(5)(C).
Here, judgment was entered on December 21, 2020, and plaintiff's motion for extension was signed on January 21, 2021. Plaintiff's notice of appeal was due on or before January 20, 2021.
However, because plaintiff's motion for extension of time was filed within 30 days after the appeal deadline expired, and he has shown good cause for his delay, his motion is partially granted. That said, plaintiff is cautioned that this court is limited by the above rule, and has no discretion to grant plaintiff 45 days to file an appeal. Rather, this court may grant plaintiff an extension of time up to and including Wednesday, February 19, 2021. Because plaintiff is being granted the additional thirty day period, Rule 4(a)(5)(C) precludes any further extensions. Fed. R. App. P. 4(a)(5)(C) ("No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time.) In other words, no further extensions of time will be granted because the court has no authority to do so. Id.
Contents of an Appeal
Plaintiff is advised that if he wishes to appeal the judgment in this case, he should file a notice of appeal in accordance with the Federal Rules of Appellate Procedure. See Fed. R. App. P. 3 & 4. For example, Rule 3(c) provides:
(c) Contents of the Notice of Appeal.Fed. R. App. P. 3(c). Form 1 in the Appendix of Forms provides a suggested form of a notice of appeal. Fed. R. App. P. 3(5). In other words, the notice of appeal does not require briefing, lengthy explanation or supporting evidence; rather, the appellate court will order the filing of an opening brief, if appropriate.
(1) The notice of appeal must:
(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as "all plaintiffs," "the defendants," "the plaintiffs A, B, et al.," or "all defendants except X";
(B) designate the judgment, order, or part thereof being appealed; and
(C) name the court to which the appeal is taken.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for an extension of time (ECF No. 25) is partially granted; and
2. Plaintiff is required to file his notice of appeal on or before Wednesday, February 19, 2021. Dated: February 1, 2021
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE /debo0108.app.ext