The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
ORDER ON MOTION TO REOPEN TIME TO FILE AN APPEAL
This matter is before the Court on a motion to reopen the time to file an appeal, filed by the Law Firm of Larson-Jackson, P.C. and Steve Larson-Jackson, and opposed by Internet Financial Services, LLC. The motion was filed on July 14, 2004, as "Appellants/Defendants' Opposition to Appellee/Plaintiff's Motion to Dismiss Appeal as Untimely," which the United States Court of Appeals for the District of Columbia Circuit referred to the undersigned.*fn1
Internet Financial Services, LLC ("Plaintiff") filed suit against the Law Firm of Larson-Jackson, P.C. and Steve Larson-Jackson ("Defendants") on June 18, 2002 for breach of contract. The Plaintiff alleged that the Law Firm had breached the payment terms of a Secured Promissory Note and that Mr. Larson-Jackson had breached the terms of a Personal Guaranty of the Secured Note by failing to make payments.
After denying the Defendants motion to dismiss, the Court issued an initial scheduling order on July 9, 2003, which, inter alia, set a deadline of October 10, 2003 for filing dispositive motions and also set a further status hearing for October 6, 2003. In mid-July 2003, after counsel for the Defendants sought leave to withdraw, Mr. Larson-Jackson, an attorney and a member of the Bar of this Court, undertook the defense of himself and the Law Firm of Larson-Jackson. Although Mr. Larson-Jackson failed to formally enter an appearance by way of praecipe, he appeared on behalf of the Defendants at the scheduled October 6, 2003 status conference, at which a further status hearing was set for December 9, 2003.
After receiving an extension of time, the Plaintiff timely filed a motion for summary judgment, a copy of which was served on Mr. Larson-Jackson. Mr. Larson-Jackson, as "Attorney for Defendants," filed an opposition for the Defendants by submitting a copy to the Clerk of the Court, who entered it into the Court's Electronic Filing System ("ECF"). After receiving service of the opposition, the Plaintiff filed a reply electronically and served a copy on Mr. Larson-Jackson.
The scheduled status conference was held on December 9, 2003. Mr. Larson-Jackson failed to appear without prior notice or subsequent explanation. An oral motion by the Plaintiff for a ruling on the papers was heard and granted.
On February 24, 2004, the Court granted the Plaintiff's motion for summary judgment. The Court found that the Plaintiff was entitled to the outstanding principal due, in the amount of $83,696.54, plus interest at the rate of 26% per annum until paid, along with attorney's fees and costs. The Court directed the Plaintiff to submit an itemized statement by March 2, 2004, attesting to a sum certain of the interest, attorney's fees, and costs due pursuant to the Secured Note and Personal Guaranty. Defendants were ordered to file their response, if any, by March 9, 2004.
The Plaintiff timely filed its affidavit and statement regarding interest, attorney's fees, fees, and costs, a copy of which was served on Mr. Larson-Jackson. The Defendants filed no response. The Court entered Judgment on April 30, 2004 ("April 30, 2004 Judgment") in the amount of $158,902.72, consisting of principal, interest, fees, and costs accrued through April 30, 2004, plus interest at the rate of 26% per annum on the principal amount of $83,696.54 until paid. Pursuant to local rule, this judgment was entered on ECF. See LCvR 5.4(c)(3) (documents filed by the court electronically have the same binding authority as those filed in paper form).
Thereafter, the Plaintiff contacted the Clerk of the Court because the caption of the April 30, 2004 Judgment identified the Defendants as "Law Firm of Larson-Jackson, P.C., et al. " rather than naming both Defendants. The Court subsequently issued an Order and Amended Judgment on May 10, 2004 ("May 10, 2004 Amended Judgment"). This amended judgment recites the judgment in the original order, changing only the caption and identifying both Defendants specifically.
According to Mr. Larson-Jackson, the Defendants "were unaware of any filing since receiving a copy of Appellee/Plaintiff's Response to Defendants' Opposition to Plaintiff's Motion for Summary Judgment filed on November 11, 2003" until June 4, 2004, when Defendants "took the liberty to review the Court file on their own accord and were surprised to find that not only had a Judgment been rendered, but upon Appellee/Plaintiff's request, an Order and Amended Judgment had also been entered in the file." [Defendants'] Opposition to [Plaintiff's] Motion to Dismiss Appeal as Untimely, ¶¶ 9, 10 ("Defs.' Opp.").
The Defendants wish to appeal the judgment of this Court issued on April 30, 2004 and re-entered with an amended caption on May 10, 2004. The Defendants filed a Notice of Appeal on June 4, 2004 ("Notice of Appeal" or "June 4, 2004 Notice of Appeal"). The issues presented are: 1) whether the Notice of Appeal was timely; and 2) if untimely, whether the Court should reopen the time to file a notice of appeal.
TIMELINESS OF THE NOTICE OF APPEAL
Rule 4(a) of the Federal Rules of Appellate Procedure establishes the time for taking an appeal as of right. In civil cases, unless the federal government is a party, the notice of appeal must be filed within thirty days of the judgment or order appealed from. FED. R. APP. P. 4(a)(1). The Court has the power to extend the time for an appeal and, under certain circumstances, reopen the time for an appeal after it has expired. An untimely appeal is ...