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Ward v. Branch Banking & Trust Co.

United States District Court, D. Maryland

August 25, 2016

PHILLIP WARD, ET AL., Plaintiffs,
v.
BRANCH BANKING & TRUST COMPANY, Defendant.

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge

         This Memorandum addresses the motion for an extension of time to file a notice of appeal, filed pursuant to Fed. R. App. P. 4(a)(5) by Phillip and Deirdre Ward, the self-represented plaintiffs.

         I. Factual Background

         Plaintiffs filed suit in 2013 against defendants Branch Banking & Trust Company (“BB&T”) and the Fisher Law Group, PLLC (“Fisher”). ECF 2.[1] As amended (ECF 14), the Complaint alleged five counts related to defendants' attempt to foreclose on plaintiffs' residence in Glenn Dale, Maryland. Plaintiffs' claims against Fisher were dismissed in June 2014, along with four of the five counts alleged against BB&T. See ECF 28; ECF 29. Count II of the Amended Complaint (ECF 14) remained, alleging that BB&T violated the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq., by failing to disclose the sale or transfer of plaintiffs' mortgage loan within 30 days after BB&T acquired the loan. ECF 14 ¶¶ 30-31. By Memorandum Opinion (ECF 92) and Order (ECF 93) dated May 17, 2016, I granted BB&T's “Second Motion for Summary Judgment” (ECF 89) and directed the Clerk to close the case. The Memorandum and Order were docketed on May 18, 2016. See Docket.

         Thereafter, on July 18, 2016, the Wards filed a “Motion for Extension of Time to File a Notice of Appeal” (ECF 94), along with a supporting memorandum (ECF 94-1) (collectively, the “Motion”). Plaintiffs deposited their Motion in a night box in the Clerk's Office in Greenbelt, precisely thirty days after the deadline for noting an appeal. BB&T has filed an opposition to the Motion. ECF 100. The Wards have replied. ECF 101.

         Also on July 18, 2016, the Wards filed a “Notice of Appeal.” ECF 95. By letter of July 22, 2016, the United States Court of Appeals for the Fourth Circuit notified the Clerk of this Court that the Fourth Circuit “will docket the appeal after the district court has ruled on the motion for extension of time.” ECF 97.

         In their Motion, the Wards aver that “they inadvertently failed to file a notice of appeal within the required time period” and that this Court should grant them relief “based upon the doctrine [of] excusable neglect.” ECF 94 at 1. The Wards concede that they received a copy of my Memorandum Opinion (ECF 92) and Order (ECF 93) by U.S. Mail on May 20, 2016. ECF 94-1 at 1. Yet, according to the Wards, “during the same time period, in May of 2016, the Pro Se Plaintiff was experiencing a traumatic event at work where the company it [sic] worked for was unexpectedly notified that it was losing its government contract.” Id. at 2. As a result, the Wards maintain, id.: “[T]he Pro Se Plaintiff with its [sic] co-workers were experiencing significant emotional strain not knowing if they would still have income and be able to support their families.” The Wards submit that it was within this context that they “quickly reviewed the federal rules for appealing the Court's ruling” and “mistakenly thought that the 60[-]day period applied to them rather than the 30[-]day time period.” Id.

         BB&T does not contest the timelineness of the Wards' Motion. But, BB&T asserts, ECF 100 at 4-5: “Plaintiffs' ‘inadvertent' or ‘mistaken' understanding of the appeal period does not support a finding of ‘excusable neglect, ' which is required under Fed. R. App. [P.] 4(a)(5) to extend the appeal period.” In their Reply (ECF 101), the Wards clarify that they were both experiencing work-related problems. They state, id. at 2: “[T]he reason the matter was so all consuming and traumatic for the Pro Se Plaintiffs is because each of the Pro Se Plaintiffs were in danger of losing their livelihood[s] at the same time because they worked for the same company.” No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

         II. Discussion

         A. Timeliness of the Motion

         Timely filing of a notice of appeal is “mandatory and jurisdictional.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). Under Fed. R. App. P. 4(a)(1)(A), the notice of appeal in a civil case generally “must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” However, a notice of appeal may be filed within 60 days after entry of the judgment or order if, inter alia, the United States or an agency is a party. Fed. R. App. P. 4(a)(1)(B).

         Fed. R. App. P. 4(a)(5) governs motions for extension of time in which to file an appeal. It provides, id.:

(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the ...

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