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Roseberry-Andrews v. Schell & Kampeter, Inc.

United States District Court, D. Maryland, Southern Division

January 18, 2017

CYNTHIA ROSEBERRY-ANDREWS, Plaintiff/Appellant,
v.
SCHELL & KAMPETER, INC. d/b/a DIAMOND PET FOODS, AND DIAMOND PET FOODS, INC. Defendant/Appellee.

          MEMORANDUM OPINION

          George J. Hazel, United States District Judge

         This 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.

         I. BACKGROUND

         This 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.[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. 25.[2] On September 26. 2016. Plaintiff filed a Motion for Enlargement of the Appeal Period. ECF No. 26.

         According 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.[3]Plaintiff "filed her notice of appeal within 60-days" after the District Court's entry of judgment. Id. ¶ 6.

         In 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. ¶ 8.

         In 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 Appeal Period.

         II. ANALYSIS

         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).

         Here, 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.[4] The Court must thus deny her Motion for Enlargement of the Appeal Period.

         III. CONCLUSION

         For the foregoing reasons, Plaintiff/Appellant's Motion for Enlargement of the Appeal Period, ECF No. 26, is denied. A separate Order shall issue.

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