United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, CHIEF U.S. DISTRICT COURT JUDGE.
before the Court is Plaintiff's Motion for Extension of
Time to File an Appeal (Dkt. 46-1). For the reasons stated
below, the Court will grant Plaintiff's Motion.
March 20, 2017, this Court granted summary judgment and
entered judgment in favor of the Defendant in this action.
Mar. 20, 2017 Mem. Decision and Order, Dkt. 33;
Judgment, Dkt. 34. Plaintiff timely filed a motion
on April 13, 2017, which the Court construed as a motion to
alter or amend judgment under Rule 59 or for relief from
judgment under Rule 60. Pl.'s Motion, Dkt. 38.
The Court denied the motion on February 12, 2018. Feb.
12, 2018 Mem. Decision and Order, Dkt. 44. The Clerk
mailed the Feb. 12, 2018 Memorandum Decision and Order to the
address listed for Plaintiff in the Notice of Electronic
Filing (NEF), but the mailing was returned undelivered on
February 16, 2018. Third Return Mail, Dkt. 45. Two
previous mailings to the same address had also been returned
undelivered Return Mail, Dkt. 41; Second Return
Mail, Dkt. 43.
contacted the Court on March 14, 2018 seeking an update on
his motion to reconsider, and learned that the motion had
been denied. See Motion to Extend, Dkt, 46-1. That
same day, Plaintiff mailed his Notice of Appeal, and attached
a Motion to Extend Time to File an Appeal. Notice of
Appeal, Dkt. 46; Motion to Extend, Dkt. 46-1.
The Notice and Motion were filed two days later, on March 16,
2018. Id. Plaintiff's Notice of Appeal contained
a directive to forward paper mail to a new address. See
Notice, Dkt. 46.
Rule of Appellate Procedure 4 sets the time to file a notice
of appeal as no later than thirty days after entry of final
judgment. Fed. R. App. P. 4(a)(1)(A). Where a party has filed
a timely motion under Rule 59 or Rule 60, the time to file an
appeal runs for all parties from the entry of an order
disposing of that motion. Id. 4(a)(4)(A).
“[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement” for which this
Court lacks the authority to create equitable exceptions.
Bowles v. Russel, 551 U.S. 205, 213 (2007). A
district court may extend the time to file a notice of
appeal, however, if a party so moves within thirty days after
the deadline to file a notice of appeal, and the party
demonstrates excusable neglect or good cause for the delay.
Fed. R. App. P. 4(a)(5)(A).
whether to extend the time to file a notice of appeal on the
grounds of “excusable neglect” is subject to the
discretion of the Court, after applying a four-part balancing
test. See Pincay v. Andrews, 389 F.3d 853, 855 (9th
Cir. 2004) (citing Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380
(1993)). The relevant factors to consider include “(1)
the danger of prejudice to the non-moving party, (2) the
length of delay and its potential impact on judicial
proceedings, (3) the reason for the delay, including whether
it was within the reasonable control of the movant, and (4)
whether the moving party's conduct was in good
faith.” Id. (citing Pioneer, 507 U.S.
at 395). “Although inadvertence, ignorance of the
rules, or mistakes construing the rules do not usually
constitute ‘excusable' neglect, it is clear that
‘excusable neglect' . . . is a somewhat
‘elastic concept' and is not limited strictly to
omissions caused by circumstances beyond the control of the
movant.” Pioneer, 507 U.S. at 392.
time to file an appeal in this case runs from the February
12, 2018 Order disposing of Plaintiff's motion to
reconsider. See Fed. R. App. P. 4(a)(4)(A). Thus,
the deadline for Plaintiff to file his notice of appeal was
March 14, 2018, which he missed by two days. See
Notice, Dkt. 46 (filed March 16, 2018). Plaintiff's
motion to extend the time to file an appeal, however, was
filed within thirty days of the March 14, 2018 deadline.
See Motion to Extend, Dkt, 46-1 (filed March 16,
2018). Thus, the Court has jurisdiction to extend the time to
file an appeal up to thirty days, upon a showing of excusable
neglect or good cause. Fed. R. App. P. 4(a)(5)(A).
offers no explanation for the delay other than that he
“had not been informed that there was a final decision
on the case.” See Motion to Extend, Dkt, 46-1.
That Order was mailed to Plaintiff at the address listed at
that time in the Notice of Electronic Filing (NEF), however,
and was returned undeliverable. See Third Return
Mail, Dkt. 45. Plaintiff offers no explanation for why mail
sent to him at the address he provided was returned
undeliverable, and instead simply asks the Court to forward
future paper mailings to a P.O. Box.
Court will assume for these purposes, given the lack of
evidence to the contrary, that Plaintiff could have avoided
this situation by ensuring that the mailing address listed
for him in the NEF was up to date and could receive mail.
Even assuming, however, that Plaintiff did not receive notice
of the Order due to circumstances under his control, such
carelessness may be “excusable” under
Pioneer. Pioneer, 507 U.S. at 392; see
also Pincay, 389 F.3d 855-56 (finding that where the
delay was small, there was no prejudice, and no bad faith,
carelessness alone does not render neglect inexcusable).
Indeed, after applying the Pioneer factors, “a
delay might be excused even where the reasons for the delay
are not particularly compelling.” Id. at 858.
(quoting United States v. Brown, 133 F.3d 993, 997
(7th Cir. 1998)).
the delay at issue is a mere two days. The Court finds,
therefore, that the delay was minor, and does not present any