United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Ngozi Madukwe moves for an extension of time to file an
appeal from the Court's dismissal of her claims in the
above-referenced case. ECF No. 27. A hearing is unnecessary.
Loc. R. 105.6 (D. Md. 2016). For the reasons stated below,
the Court will grant Plaintiffs motion.
timely filing of a notice of appeal is "mandatory and
jurisdictional." Hard v. Branch Banking &
Trust Co.. No. CV Fl.H-13-1968. 2016 Wl. 4492706. at
*2 (D. Md. Aug. 25. 2016) (citing Budimch v. Becton
Dickinson & Co., 486 U.S. 196. 203 (1988)). Pursuant
to Fed. R. App. P. 4(a)(l)(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 Osgood cause." 4(a)(5)(A)(ii).
Plaintiffs time to file a notice of appeal expired on April
24. 2017. Plaintiff then had until May 24. 2017 to move for
an extension of time based on excusable neglect or good cause
pursuant to Rule 4(a)(5)(A)(ii). Because Plaintiff filed the
instant motion on April 25. 2017. the Court finds that her
Motion for an Extension of Time was timely filed. ECF No. 27.
the Court must consider whether or not Plaintiff has offered
a showing of excusable neglect or good cause for the delay.
As the Advisory Committee's Notes to the Federal Rules of
Appellate Procedure reflect, these standards occupy
"different domains" and are "not
interchangeable." Fed. R. App. P. 4(a)(5)(A)(ii).
advisory committee's note to 2002 Amendments (internal
citations omitted). The Committee further explained that.
[t]he 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 in which 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.
Id. To illustrate the difference in the standards,
the Committee's notes describe a situation where the
postal service failed to deliver a notice of appeal.
Id. In that situation, good cause rather than
excusable neglect would apply because, "the movant may
not have been neglectful at all." Id.
Plaintiff requests a one day extension of her time to file an
appeal because of a death in her family on the date of the
appeal deadline. ECF No. 27. In this situation, the Court
finds that excusable neglect rather than good cause is the
appropriate standard to employ because, while a death in her
family was both tragic and outside Plaintiffs control, her
decision to wait until the last day possible to file her
appeal was within her control.
neglect is an "equitable [inquiry], " taking into
consideration "(1) the danger of prejudice to the
non-movant; (2) the length of the delay and its potential
impact on judicial proceedings; (3) the reason for the delay,
including whether it was in the reasonable control of the
movant; and (4) whether the movant acted in good faith."
Shiiler v. Prince George's Cty., No.
PWG-13-3373. 2014 WL 5023214. at *l-2 (D. Md. Oct. 7. 2014)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380.395 (1993)) (alteration in
the original). The Fourth Circuit has explained that,
"[a]s a general rule, the first two Pioneer
factors will favor the moving party because the time limits
inherent in Rule 4(a)(5) necessarily minimize the extent of
any prejudice or delay" and the fourth factor, good
faith is "seldom at issue." Symhionics Inc. v.
Ortlieb. 432 F.App'x 216. 219 (4th Cir. 2011)
(citing Silivanch v. Celebrity Cruises. Inc.. 333
F.3d 355. 366 (2d Cir. 2003)). Thus, the reason for the delay
is the "most important" issue for the Court to
consider, Shttler, 2014 WL 5023214, at *l-2 (quoting
Thompson v. E.I. DuPont de Nemours & Co., 76
F.3d 530. 534 (4th Cir. 1996)). and "a district court
should find excusable neglect only in the extraordinary
cases where injustice would otherwise result."
Symhionics Inc., 432 F.App'x at 220 (emphasis in
explained above. Plaintiff states that a death in her family
caused her to file her notice of appeal one day late.
Further. Plaintiff filed her request for an extension of time
one day after the expiration of the appeal period, which was
also only one day after the death in her family that caused
the delay. Thus, this is not a situation where a party
suffered a personal tragedy and then become unresponsive,
delaying court proceedings. See Harrington v. City of
Chicago. 433 F.3d 542. 548 (7th Cir. 2006) (death in
family not an excuse when counsel "kept opposing counsel
in the dark" during discovery proceedings.). Here.
Plaintiff acted as quickly as possible in response to
unforeseen events. Thus, while it would have been prudent for
Plaintiff to have planned to file her appeal more promptly,
the Court finds that she has made a sufficient showing of
excusable neglect and thus, will allow her to file her notice
of appeal one day late. See Jones v. Giant of Maryland.
LLC. No. CIV.A.DKC 08-0304. 2010 WL 3677017. at *7 (D.
Md. Sept. 17. 2010) (granting motion to extend time due to
the recent passing of counsel's family member and the
minimal delay incurred by late filing).
foregoing reasons. Plaintiffs Motion to Extend Appeal
Deadline. ECF No. 27. ...