Gicewicz v. Bdb Capital LLC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Mark E Gicewicz, No. CV-19-00506-TUC-RM Plaintiff, ORDER v. Bdb Capital LLC, et al., Defendants.

Pending before the Court is Plaintiff’s Motion for Extension of Time to File a Notice of Appeal.1 (Doc. 10.) Plaintiff filed a Complaint on October 21, 2019 alleging violations of federal law related to tenants’ rights. (Doc. 1.) The Court dismissed the Complaint for failure to state a claim on November 20, 2019. (Doc. 6.) Plaintiff filed a First Amended Complaint on December 18, 2019 (Doc. 7), which the Court dismissed for lack of subject-matter jurisdiction on January 31, 2020 (Doc. 8). Plaintiff filed the Motion for Extension of Time on March 2, 2020. (Doc. 10.) For the following reasons, the motion will be granted.

In a civil case not involving the United States as a party, a notice of appeal must be filed with the district clerk within 30 days after entry of the judgment or order 1 Although the Motion is docketed as a Motion for Extension of Time to Appeal, Plaintiff is requesting an extension of time in which to file a notice of appeal.

1 appealed from. Fed. R. App. P. 4(a)(1)(A).2 This 30-day limit is mandatory and jurisdictional. Browder v. Director, Illinois Dep’t of Corrections, 434 U.S. 257, 264 (1978). The notice of appeal must: “(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice. . . (B) designate the judgment, order, or part thereof being appealed; and (C) name the court to which the appeal is taken.” Fed. R. App. P. 3(c)(1).

7 Federal Rule of Appellate Procedure 4(a)(5) governs motions for extension of time to file a notice of appeal. The Rule provides that the district court may extend the time to file a notice of appeal if (1) a party moves for the extension no more than 30 days after the time to file the notice of appeal has expired; and (2) the moving party shows excusable neglect or good cause. Fed. R. App. P. 4(a)(5). If the party files a motion for extension of time after the expiration of time prescribed for appeal by Fed. R. App. P. 4(a)(1)—in this case, 30 days—then the party must show excusable neglect. See Oregon v. Champion Int’l Corp., 680 F.2d 1300, 1301 (9th Cir. 1982).

15 Plaintiff’s Motion for Extension of Time, filed on March 2, 2020, is timely because it was filed exactly 30 days after the entry of judgment, which is less than 30 days after the time to file the notice of appeal expired. Because the Motion for Extension of Time was filed within the time prescribed for appeal, Plaintiff is not required to show excusable neglect and must show only good cause to warrant the requested extension.

20 In his motion, Plaintiff requests a 30-day extension of time to file a notice of appeal because his partner has suffered a “serious viral infection and mild heart attack” and, as her sole primary caretaker, he has been unable to take the steps necessary to file the notice of appeal. (Doc. 10.) The Court finds that Plaintiff has shown good cause and will therefore grant the extension.

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27 2 The time provided for the filing of a notice of appeal can vary depending on the parties in the case and whether any post-trial motions were filed. See Fed. R. App. P. 4(a)(1)(B), (a)(4), (c). In this case Petitioner had 30 days from the date of entry of judgment to file his notice of appeal, which would have been due on March 2, 2020.

1 Accordingly, 2 IT IS ORDERED that the Motion for Extension of Time to File Notice of Appeal 3|| (Doc. 10) is granted. Plaintiff shall file a Notice of Appeal within ten (10) days from the 4|| date this Order is docketed.

5 Dated this 23rd day of April, 2020.

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Honorable Rosthary Mafquez 9 United States District Iidge -3-