Opinion
RE-17-104
10-25-2019
U.S. BANK TRUST, N A., Plaintiff v. JAMES D. KEEFE, Defendant
ORDER
Nancy Mills, Justice
Before the court is plaintiff's motion to extend time for filing by six days nunc pro tunc. For the following reasons, the motion is denied.
Procedural History
On July 9, 2019, the Superior Court issued its judgment. On July 29, 2019, plaintiff filed an appeal with an incorrect filing fee. Plaintiff relied on a guide, "How to File a Civil Appeal," which incorrectly stated the filing fee. On July 31, 2019, plaintiff was informed the appeal was incomplete and that the deadline to appeal, July 30, 2019, was not extended. On August 2, 2019, plaintiff sent the correct fee, which was received by the court on August 5, 2019.
On August 13, 2019, the Law Court dismissed plaintiff's appeal as untimely. On August 16, 2019, plaintiff filed a motion to reconsider the dismissal with the Law Court. On August 27, 2019, the Law Court denied plaintiff's motion for reconsideration.
On August 28, 2019, plaintiff filed this motion to extend nunc pro tunc. On September 17, 2019, defendant opposed the motion. On September 24, 2019, plaintiff replied to the opposition.
Discussion
A. Timeliness
Plaintiff seeks an order nunc pro tunc to extend the time for filing its appeal by six days. Plaintiff's appeal was filed prior to the original deadline, but was not accepted because it was an incomplete filing. The July 30, 2019 deadline for plaintiff to file its appeal was not extended. Plaintiff did not file a motion to extend with the Superior Court concurrently with its notice of late appeal on August 5, 2019.
Defendant argues that because plaintiff did not seek an extension with the proper court until August 28, 2019, which exceeded the available twenty-one day extension of time plaintiff could have received pursuant to M.R. App. P. 2B(d)(1), plaintiff's motion to extend is untimely and should be denied. Plaintiff argues that its motion is not untimely because its late notice of appeal was not dismissed as incomplete or untimely and was transmitted to the Law Court. Plaintiff argues that when the case was on the Law Court docket, the trial court's jurisdiction was terminated pursuant to M.R. App. P. 3(b). Plaintiff argues that the eight days, during which its appeal was pending, and the twelve days, during which its motion to reconsider was pending, should not be included in the calculation of the additional twenty-one day extension set forth in M.R. App. P. 2B. Plaintiff argues that its motion was within the twenty-one day extension deadline.
Plaintiff does not address why it did not file a motion to extend with the trial court pursuant to M.R. App. P. 2B(d)(1) when plaintiff discovered that it had missed the filing deadline and the deadline had not been extended. M.R. App. P. 2B(d)(1) provides, "Upon a showing of good cause, the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing the notice of appeal." M.R. App. P. 2B(d)(1) (emphasis added). Plaintiff correctly states that there is good cause for the trial court to grant its motion to extend because plaintiff was misled by the court's guide, which provided incorrect information regarding the filling fee. See Crossley v. Taylor, 2004 ME 37, ¶ 5, 845 A.2d 574; Phillips v. Johnson, 2003 ME 127, ¶ 20, 834 A.2d 938. The court in Phillips held:
We therefore conclude that when a notice of appeal is filed within the twenty-one-day period prescribed by M.R. App. P. 2(b)(3) and served on the opposing party, but directed to the wrong court, and when the error in the appeal is corrected and brought to the attention of the opposing party and the court through a motion to extend that is filed within the brief twenty-one-day period of extension pursuant to M.R. App. P. 2(b)(5), the court exceeds the bounds of its discretion when it declines to allow the extension.2003 ME 127, ¶ 20, 834 A.2d 938 (emphasis added). Similarly, in Crossley, the motion to extend was filed within the twenty-one day extension period. 2004 ME 37, ¶ 4, 845 A.2d 574 ("On July 21, 2003, within the additional twenty-one days specified by M.R. App. P. 2(b)(5), [appellant] filed his motion to extend time"). United States Supreme Court precedent relied on by plaintiff is also distinguishable. The appellant in the case cited was not given any notice that his appeal was incomplete until well after the extension deadline. Becker v. Montgomery, 532 U.S. 757, 761 (2001) ("No court officer had earlier called [appellant]'s attention to the need for a signature, and the dismissal order, issued long after the 30-day time to appeal expired, accorded [appellant] no opportunity to cure the defect.").
M.R. App. P. 2(b)(5) is a former version of M.R. App. P. 2B(d)(1). Both rules contain the same language.
"[T]he trial court may, ... extend the time for filing the notice of appeal otherwise allowed for a period not to exceed 21 days from the expiration of the original time for filing an appeal." M.R. App. P. 2B(d)(1). Based on Rule 2B, plaintiff's motion to extend is untimely and is denied.
The clerk is directed to incorporate this order into the docket by reference, M.R. Civ. P. 79(a).