Opinion
24-3064-JWL
12-23-2024
DAVID C. LETTIERI, Plaintiff, v. HOSTESS BRANDS LLC, Defendant.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
This matter is a civil action filed by a prisoner proceeding pro se and in forma pauperis. The Court conducted an initial review of the case and directed Plaintiff to show cause why his Complaint should not be dismissed for failure to state a claim upon which relief may be granted. (Memorandum and Order to Show Cause, Doc. 3) (“MOSC”). Plaintiff filed responses to the MOSC (Docs. 5, 7) and an Amended Complaint (Doc. 4). On August 2, 2024, the Court entered a Memorandum and Order (Doc. 8) (“M&O”) dismissing this case for failure to state a claim. This matter is before the Court on Plaintiff's Motion to Reopen for Appeal/Reconsider (Doc. 12).
Plaintiff seeks to have the time to file an appeal reopened pursuant to Federal Rule of Appellate Procedure 4(a)(6). Rule 4(a)(6) provides:
(6) Reopening the Time to File an Appeal. The 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 14 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.Fed. R App. P. 4.
Plaintiff asserts that he did not receive notice of the dismissal of this case until October 28, 2024. This assertion is supported by the docket sheet. The M&O was mailed to Plaintiff on August 2, 2024. (Doc. 8.) On August 20, 2024, the clerk noted that the M&O was returned to the Court as undeliverable. (Doc. 10.) On October 23, 2024, the Court received a notice of change of address from Plaintiff (Doc. 11), and the clerk remailed the M&O to Plaintiff at the new address. Then, on November 5, 2024, the Court received the present motion from Plaintiff.
Therefore, the Court finds that Plaintiff meets the requirements of Rule 4(a)(6): he did not receive notice of the entry of judgment within 21 days after entry; he filed the present motion within 14 days after receiving notice of the entry of judgment; and no party would be prejudiced as no defendant was served in this case.
IT IS THEREFORE ORDERED BY THE COURT that the Clerk is directed to reopen this case for purposes of entering this Memorandum and Order.
IT IS FURTHER ORDERED that the time for Plaintiff to file an appeal of the judgment in this matter is reopened for a period of 14 days from the date of this Order.
IT IS FURTHER ORDERED that the Clerk is directed to close this case.
IT IS SO ORDERED.