United States District Court, D. Delaware
TUESDAY S. BANNER, Plaintiff,
DEPARTMENT OF HEALTH AND HUMAN SERVICES DIVISON FOR THE THE VISUALLY IMPAIRED, Defendant.
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
Tuesday Banner ("Plaintiff), filed this lawsuit on
September 30, 2013. (D.L 2) She appears pro se and
was granted permission to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. (D.L 4) Pending is
Plaintiffs motion/request for an extension of time to file a
notice of appeal. (D.L 49)
March 19, 2018, the Court granted Defendant's motion for
summary judgment, denied Plaintiffs motion to compel and
directed the Clerk of Court to enter judgment in favor of
Defendant and against Plaintiff. (D.L 45) Judgment was
entered the next day, March 20, 2018. (D.L 46) Plaintiff
filed a notice of appeal on April 30, 2018. (D.L 47)
On May 2, 2018, the United States Court of Appeals for the
Third Circuit advised Plaintiff that the appeal was not filed
within the time prescribed by the Federal Rules of Appellate
Procedure and referred Plaintiff to Fed. R. App. P. 4.
See Banner v. Department of Health and Human
Services, No. 18-1977 (3d Cir. May 2, 2018 legal
division letter advising that the case had been listed for
possible dismissal due to jurisdictional defect). Plaintiff
filed the instant motion on May 23, 2018. (D.L 49)
to Federal Rule of Appellate Procedure 4(a)(5)(A), the Court
may grant Plaintiffs motion only if it was filed no later
than thirty (30) days after the expiration of the time
originally prescribed by Rule 4(a), and she shows either
excusable neglect or good cause. See Fed. R. App. P.
4(a)(5)(i) and (ii). Pursuant to Federal Rule of Appellate
Procedure 4(a)(6), 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: (1) 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; (2) 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 (3) the Court finds that no party
would be prejudiced. See Fed. R. App. P. 4(a)(6).
seeks an enlargement of time to file a notice of appeal. She
acknowledges that she belatedly filed the notice of appeal.
(See D.I. 47) Plaintiff posits, however, that the
notice of appeal was filed within the 14-day window during
which the Court has jurisdiction to authorize an enlargement
to file a notice of appeal for excusable neglect and cause.
Plaintiff seems to misconstrue the timing elements of Rule
Federal Rules of Appellate Procedure require that a notice of
appeal in a civil case be filed within 30 days after the
order appealed from is entered on the district court's
docket. See Fed. R. App. P. 4(a)(1)(A). Here,
Plaintiff appeals the March 20, 2018 judgment. (See
Notice of Appeal at D.I. 47) Hence, she was required to file
her notice of appeal on or before April 19, 2018.
See Fed. R. Civ. P. 6(a); Fed. App. P. 26(a). The
record demonstrates that the notice of appeal was not filed
until April 30, 2018. (See D.I. 47)
4(a) (5) (A) (i) provides that Plaintiff was required to file
the motion for extension of time to appeal no later than
thirty days after the expiration of the time originally
prescribed by Rule 4(a). As just discussed, the original
deadline to appeal was April 19, 2018. The thirty day
time-frame following the expiration of the April 19, 2018
deadline fell on Saturday, May 19, 2018. However, because
that day is a Saturday, Plaintiff had until Monday, May 21,
2018 to file the motion for an extension of time to file the
appeal. See Fed. R. Civ. P. 6(a)(1)(C); Fed. R. App.
P. 26(a)(1)(C). Plaintiff did not file the motion for an
extension of time until May 23, 2018. Therefore, the instant
motion is untimely having been filed two days late. See
Vaughan v. Ricci, 2007 WL 4570079, at *1 (D.N.J. Dec.
26, 2007) (denying request for extension of time to appeal on
timeliness grounds).As discussed, Plaintiffs motion is
untimely under subparagraph (i) of Rule 4(a)(5)(A) and for
that reason, her motion will be denied. Even if the Court
found the request timely, which it has not, Plaintiff has
failed to show (1) excusable neglect, as the copy of the
judgment she seeks to appeal included the docketing header
that the judgment was filed on March 20, 2018, making it
clear it was entered on March 20, 2018, or (2) good cause, as
the delay for filing was in her control. See e.g., Grant
v. Revera Inc/Revera Health Systems, 655 Fed.Appx. 914,
91 (3d Cir. July 20, 2016). Finally, the Court observes that
Plaintiff was notified by the Court of Appeals on May 2,
2018, that her appeal was untimely and, at the same time, was
provided a copy of Rule 4, setting forth the timing
requirements for seeking an extension of time. Even though
she was armed with this information, Plaintiff did not timely
file the instant motion.
addition, Plaintiff has not met the requisites to reopen the
time to file an appeal under Fed. R. App. P. 4(a)(6), to the
extent that is her intent. The first element that must be
satisfied is that Plaintiff, as the moving party, must not
have received notice of entry of judgment within 21 days of
its entry. See Fed. R. App. P. 4(a)(6)(A). The Court
docket receipt indicates that on March 20, 2018, the judgment
was mailed to Plaintiff at the address she provided to the
Court. Notably, Plaintiff makes no claim she did not receive
notice of the judgment she seeks to appeal and, in fact,
acknowledges that she received a copy of the judgment Because
Plaintiff cannot meet the first element, the Court need not
address the other factors in Rule 4(a)(6). See Fed.
R. App. P. 4(a)(6)(B) and (C).
above reasons, the Court will deny Plaintiffs motion/request
for an extension of file a notice of appeal. (D.I. 49) ...