United States District Court, D. Maryland
Lipton Hollander United States District Judge
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
filed suit in 2013 against defendants Branch Banking &
Trust Company (“BB&T”) and the Fisher Law
Group, PLLC (“Fisher”). ECF 2. 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.
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.
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.
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.
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.
Timeliness of the Motion
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.
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
(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 ...