Opinion
Civil Action No. 18-cv-02885-CMA-KLM
03-25-2021
HUNTER ADAM MELNICK, Plaintiff, v. JOHN CAMPER, Director of Colorado Bureau of Investigation, in his official capacity, Defendant.
ORDER ON PARTIAL REMAND
This matter is before the Court on the Tenth Circuit's January 20, 2021 Order partially remanding this matter for this Court to consider whether to construe Mr. Melnick's Notice of Appeal as a motion to reopen the time to appeal under Fed. R. App. P. 4(a)(6) ("January 20, 2021 Order"). (Doc. # 83.) Upon review of the January 20, 2021 Order and the docket, this Court so construes Mr. Melnick's Notice of Appeal and finds that Mr. Melnick has satisfied all conditions to reopen the time to appeal under Fed. R. App. P. 4(a)(6).
I. ANALYSIS
This Court dismissed Plaintiff's case on September 18, 2020. The time to appeal expired on October 19, 2020. See Fed. R. App. P. 4(a)(1); Fed. R. App. P. 26(a)(1)(C). Mr. Melnick filed a Notice of Appeal on November 23, 2020. (Doc. # 73.) Therefore, Mr. Melnick's Notice of Appeal was untimely filed. However, Fed. R. App. P. 4(a)(6) allows this Court to reopen the time to appeal if 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.
With respect to the first factor, it is manifest from the record that Mr. Melnick did not receive notice of the final judgment in this case within 21 days of the entry of judgment. Judgment entered on September 18, 2020. (Doc. # 67.) On September 24, 2020, Mr. Melnick filed a notice of change of address. (Doc. # 68.) Mr. Melnick's notice was dated just two days after judgment entered in this case. On October 19, 2020, Mr. Melnick filed a Motion for Stay, in which he cites frequent transfers. (Doc. # 69.) On November 10, 2020, Mr. Melnick filed a Motion for Status, in which he states that he had not received any orders from the Court for six months. (Doc. # 71.) On November 16, 2020, this Court granted Mr. Melnick's Motion for Status and ordered that a copy of the Court's Order Granting Defendant's Motion to Dismiss (Doc. # 66) and Final Judgment (Doc. # 67) be mailed to Mr. Melnick. Shortly thereafter, on November 23, 2020, Mr. Melnick filed his Notice of Appeal, in which he represented that he received a copy of this Court's final judgment for the first time on November 18, 2020. (Doc. # 73.) Accordingly, the Court finds that Mr. Melnick did not receive notice of the final judgment in this case within 21 days of the entry of judgment, and Fed. R. App. P. 4(a)(6)(A) is satisfied.
With respect to the second factor, Mr. Melnick filed his Notice of Appeal, which the Court construes herein as a motion to reopen the time to appeal, on November 23, 2020. Therefore, Mr. Melnick filed his Notice of Appeal within 180 days of the entry of judgment in this case, and Fed. R. App. P. 4(a)(6)(B) is satisfied.
Lastly, with respect to the third factor, the Court finds that no party would be prejudiced by reopening the time to appeal. Defendants have been on notice of Mr. Melnick's various transfers, changes of address, and inability to receive court filings since September 24, 2020. See (Doc. # 68). Moreover, Defendants have not filed an objection or any kind of response to the possibility of reopening Mr. Melnick's time to appeal since the Tenth Circuit issued its January 20, 2021 Order. Accordingly, Fed. R. App. P. 4(a)(6)(C) is also satisfied.
For the foregoing reasons, this Court construes Mr. Melnick's Notice of Appeal as a motion to reopen pursuant to Fed. R. Civ. P. 4(a)(6) and finds that Mr. Melnick has satisfied all conditions to reopen the time to appeal. As Mr. Melnick will receive a copy of this Order, Mr. Melnick's Motion for Status on Reconsideration (Doc. # 85) is DENIED AS MOOT.
DATED: March 25, 2021
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge