UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
May 13, 2008
JOSEPH SLOVINEC, PLAINTIFF,
AMERICAN UNIVERSITY, DEFENDANT.
The opinion of the court was delivered by: Gladys Kessler United States District Judge
On October 15, 2007, the Court issued a Memorandum Opinion and a separate Order which, among other things, granted Defendant's motion for summary judgment. See Slovinec v. American Univ., 520 F. Supp.2d 107, 124 (D.D.C. 2007). On December 14, 2007, Plaintiff submitted a Notice of appeal and a Motion for Stay In Proceedings For At Least 20 Days to Allow Corrections of Unclear or Erroneous Language In Documents Before Appeal ("Mot. for Stay"). The Clerk of Court docketed the Notice of Appeal on December 14, 2007 [Dkt. #84], and the undersigned granted leave to file the motion on December 18, 2007 [Dkt. #85].
This matter is before the Court for a determination "whether, when construed as a motion for extension of time to file a notice of appeal under Fed. R. App. P. 4(a)(5), [Plaintiff's] 'Motion for Stay in Proceedings,' received by the district court on December 14, 2007, and filed on December 18, 2007, should be granted." Slovinec v. American Univ., No. 07-7180 (D.C. Cir. Apr. 15, 2008) (order remanding record for determination whether to grant Motion for Stay).
The time limit for noticing an appeal is both mandatory and jurisdictional. See Browder v. Director, Dep't of Corr. of Illinois, 434 U.S. 257, 264 (1978); Moore v. South Carolina Labor Bd., 100 F.3d 162, 163 (D.C. Cir. 1996) (per curiam). A district court may extend the time to file a notice of appeal if the party files a motion within 30 days after the time prescribed by the rule expires, and if the party shows excusable neglect or good cause.*fn1 See Fed. R. App. P. 4(a)(5)(A). In a case such as this, the notice of appeal "must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed. R. App. P. 4(a)(1)(A). In no case may an extension of time "exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later." Fed. R. App. P. 4(a)(5)(C).
Plaintiff meets the first requirement because he filed his motion to extend the time to file his notice of appeal on December 14, 2007, which by the Court's count is exactly 30 days after the last day on which his notice was due. Plaintiff's motion fails, however, because he shows neither excusable neglect nor good cause for the extension of time.
The Advisory Committee's Note to the 2002 Amendments to Rule 4(a)(5)(A)(ii) distinguishes "excusable neglect" from "good cause" as follows:
The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault - excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.
Fed. R. App. P. 4(a)(5)(A)(ii), Advisory Committee's Notes to 2002 Amendments.
Plaintiff does not address the matter of excusable neglect. Rather, he states that he "had good cause for inability to carefully read pleadings with a pressurized job search and unemployment insurance of only $11 per day." Mot. for Stay at 1, ¶ 2. In addition, he asserts that he is the subject of "fraud, coercion, or duress" because his eviction from University housing "caused him to live in a homeless shelter with discrimination against Plaintiff's access to free legal counsel." Id. at 2.
Nothing in Plaintiff's papers suggests that he did not receive notice of the Court's October 15, 2007 Memorandum Opinion and Order in a timely fashion. Moreover, it is clear from Plaintiff's papers that he is knowledgeable about the applicable rules of civil and appellate procedure and the filing deadlines set forth herein. In short, notwithstanding Plaintiff's understandable focus on his employment and housing needs, he does not show that his last filing was due to circumstances beyond his control.*fn2 See. e.g., Anyanwutaku v. Wilson, No. 00-2296, 2006 WL 1663407, at *3 (D.D.C. June 12, 2006) (concluding that medical diagnosis and resulting "emotional disorganization" were not events beyond plaintiff's control such that he showed good cause for late filing his notice of appeal).
When construed as a motion for extension of time to file a notice of appeal under Fed. R. App. P. 4(a)(5), the Court concludes that Plaintiff's Motion for Stay in Proceedings must be denied for lack of merit. An Order consistent with this Memorandum Opinion will be issued separately.