United States District Court, D. Maryland, Southern Division
J. Hazel, United States District Judge
action has been remanded to this Court from the Fourth
Circuit Court of Appeals for the limited purpose of resolving
Plaintiff/Appellant Cynthia Roseberry-Andrews"
("Roseberry-Andrews" or "Plaintiff")
Motion for Enlargement of Appeal Period, ECF No. 26. No
hearing is necessary. See Loc. R. 105.6. For the
following reasons, Roseberry-Andrews's Motion for
Enlargement of the Appeal Period is denied.
case arose from a dispute regarding contaminated dog food and
a resulting class action lawsuit, Marciano v. Schell
& Kampeter, Inc. d/b/a Diamond Pel Foods, No.
12-cv-02708 (E.D.N.Y.). ECF No. 25 at 1. Despite the class
action lawsuit. Plaintiff brought an action in this Court,
alleging that her two champion show dogs died after ingesting
pet food from Defendant Diamond Pet Foods. Id. at 2.
The Court found that "Plaintiff was a member of the
settlement class" in the class action case and that
"her remedy, if any, exists in the Settlement
Court." ECF No. 19 at 5-6. The Court's Memorandum
Opinion and Order were docketed on May 2, 2016. ECF No. 19.
Plaintiff tiled a Notice of Appeal on July 1, 2016. nearly 60
days after the entry of judgment. ECF No. 22. On September
15. 2016. Defendant/Appellee Schell & Kampeter, Inc.
d/b/a Diamond Pet Foods ("Defendant") filed an
Opposition to Appellant's Motion to Extend Time for
Filing Appeal and Motion to Dismiss Appeal. ECF No.
On September 26. 2016. Plaintiff filed a Motion for
Enlargement of the Appeal Period. ECF No. 26.
to Plaintiffs Motion for Enlargement of the Appeal Period,
Plaintiff is a pro se litigant. See ECF No.
26 at 6. Plaintiff states that she "lives in a rural
beach town on the Western Shore of Maryland, where she
receives her mail from a United States Post Office box. Mail
delivery is often delayed. Therefore, Plaintiff did not
receive the district court's decision in the mail until
on or about 9 May 2016." ECF No. 26 ¶ 4. Plaintiff
further states that she "pursued legal advice concerning
the interpretation of the Rules for filing an appeal."
Id. ¶ 5. "The Constitutional law attorney,
who provided the advice to Plaintiff/Appellant inadvertently,
understood that the opposing party in Plaintiff
s/Appellant's matter was a Federal entity instead of a
civil defendant." Id.Plaintiff "filed her
notice of appeal within 60-days" after the District
Court's entry of judgment. Id. ¶ 6.
addition to the incorrect legal advice Plaintiff purportedly
received, Plaintiff also states that her "computer
crashed, and was sent out for repair. Plaintiff/Appellant was
without her computer for almost three weeks. This computer
contained all of the electronic files in this matter."
Id. ¶ 6. During this time. Plaintiffs Motion to
Request Use of CM/ECF was also pending because "the
Appeals Court clerk Indicated that the U.S. District Court
had not forwarded the Appeals CM/ECF request to the U.S.
Court of Appeals.'* Id. ¶ 7. Plaintiff was
further required to "receive permission and apply for a
separate account to use the U.S. Court of Appeals for the
4th Circuit CM/ECF system;' Id.
Defendant/Appellee's Motion to Dismiss the Appeal. ECF
No. 25. Defendant contends that Plaintiffs Notice of Appeal
is untimely, and notes in its Opposition that
""[t]he Plaintiff failed to file her Appeal within
the 30 days of the Order" and "[t]here is no
evidence the Plaintiff/Appellant filed for an extension of
time in the required time period." ECF No. 25 at 3. In a
per curiam opinion dated December 19, 2016, the Fourth
Circuit Court of Appeals remanded the action back to this
Court for the limited purpose of resolving Plaintiffs Motion
for Enlargement of the Appeal Period. ECF No. 27. Upon review
of the record and applicable rules of appellate procedure,
the Court must deny Plaintiffs Motion for Enlargement of the
timely filing of a notice of appeal is "mandatory and
jurisdictional." Ward v. Branch Banking & Trust
Co., No. CV ELH-13-1968, 2016 WL 4492706, at *2 (D. Md.
Aug. 25, 2016) (citing Budinich v. Becton Dickinson &
Co.. 486 U.S. 196, 203 (1988)). Pursuant to Fed. R. App.
P. 4(a)(1)(A), a party must file a notice of appeal as
required by Fed. R. App. P. 3 within 30 days after the entry
of the District Court's final judgment, unless the
District Court extends the appeal period under Fed. R. App.
P. 4(a)(5), or reopens the appeal period under Fed. R. App.
P. 4(a)(6). Under Fed. R. App. P. 4(a)(5), the District Court
may extend the time to file a notice of appeal if a party
moves for an "extension of time" at a time "no
later than 30 days after the time prescribed by this Rule
4(a) expires, " 4(a)(5)(A(i), and "that party shows
excusable neglect or good cause." 4(a)(5)(A(ii).
Plaintiffs time to file an appeal under Rule 4(a) expired on
June 1, 2016. Plaintiff then had until July 1. 2016 to move
for an extension of time based on excusable neglect or good
cause under Rule 4(a)(5)(A)(i)-(ii). Instead, on July 1,
2016, Plaintiff filed her Notice of Appeal, ECF No. 22. but
did not move for an extension of time as required by Rule
4(a)(5)(A)(i). In fact. Plaintiff did not file her Motion for
Enlargement of the Appeal Period until September 26, 2016.
See ECF No. 26. Plaintiff concedes that she received
the District Court's decision on May 9, 2016. ECF No. 26
¶ 4. "Pro se litigants and other litigants alike
are subject to the time requirements and respect for court
orders without which effective judicial administration would
be impossible." Shuler v. Prince George 's
Cty., No. PVVG-13-3373. 2014 WL 5023214, at *2 (D. Md.
Oct. 7. 2014) (quoting Ballard v. Carlson, 882 F.2d
93. 96 (4th Cir. 1989)); see also Birl v. Estelle,
660 F.2d 592, 593 (5th Cir. 1981) (dismissing untimely appeal
because "the right of self-representation does not
exempt a party from compliance with relevant rules of
procedural and substantive law"). Because
Plaintiff/Appellant did not file a motion for extension of
time within 30 days of when her time to appeal expired, her
motion is untimely. The Court must thus deny her Motion for
Enlargement of the Appeal Period.
foregoing reasons, Plaintiff/Appellant's Motion for
Enlargement of the Appeal Period, ECF No. 26, is denied. A
separate Order shall issue.