Torrey v. Department of Elementary & Secondary Education Appeals
Torrey v. Department of Elementary & Secondary Education Appeals
Opinion of the Court
MEMORANDUM and ORDER
This court dismissed Plaintiffs complaint on April 9, 2013. Plaintiff had until May 9, 2013 to file a notice of appeal.
The Advisory Committee notes to Federal Rule of Appellate Procedure 4 clarify that the good cause and excusable neglect standards occupy “different domains.”
*306 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 where 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.4
A determination of excusable neglect “is at bottom an equitable one.”
Plaintiff offers two explanations for her untimely filing. First, Plaintiff claims that she was emotionally distraught after her family dog bit her daughter on April 9, 2013.
Second, Plaintiff claims that she did not receive this court’s order dismissing her complaint until April 25, 2013, because she was outside of Massachusetts on a vacation between April 10, 2013 and April 25, 2013.
Finally, it is apparent from Plaintiffs filings that she miscalculated the deadline for appeal based on a misunderstanding of the Federal Rules of Appellate Procedure. Plaintiff thought that the thirty-day period for appeal began to run when she received the district court order in the mail. Yet, Federal Rule of Appellate Procedure 4(a)(1)(A) states in clear terms that the thirty days begins to run at the “entry of the judgment or order appealed from.” “[I]nadvertence, ignorance of the rules, or- mistakes construing the rules do not usually constitute ‘excusable’ neglect.”
For the above-stated reasons, Plaintiffs Motion for an Extension of Time for Appeal is DENIED. IT IS SO ORDERED.
. Fed. R.App. P. 4(a)(1)(A).
. See Fed. R.App. P. 4(a)(5)(A).
. Fed. R.App. P. 4 advisory committee’s note (quoting Lorenzen v. Emps. Ret. Plan, 896 F.2d 228, 232 (7th Cir. 1990)).
. Id.; see Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d 451, 453 (1st Cir. 1995).
. Graphic Commc’ns Int’l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir. 2001) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
. Id. (quoting Pioneer, 507 U.S. at 395, 113 S.Ct. 1489).
. Id.
. Id.
. See Mot. Extension Time Appeal Ex. 4.
. Mot. Extension Time Appeal Ex. 4.
. Mot. Extension Time Appeal Ex. 3 (Rodrigues Aff.).
. Graphic Commc’ns Int’l, 270 F.3d at 6 (quoting Pioneer, 507 U.S. at 392, 113 S.Ct. 1489).
. United States v. Almonte, No. CR 98-64 ML, 2007 WL 1656249, at *1 (D.R.I. June 6, 2007) (citing Eagle Eye Fishing Corp. v. United States Dep’t of Commerce, 20 F.3d 503, 506 (1st Cir. 1994)).
. See Graphic Commc’ns Int’l, 270 F.3d at 5-6; Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001).
Reference
- Full Case Name
- Michelle TORREY, Parent and POA of C.S. v. DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION APPEALS a/k/a Commonwealth of Massachusetts Division of Administrative Law Appeals Special Education of Appeals
- Status
- Published