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Burrell v. 911 Restoration Franchise, Inc.

United States District Court, D. Maryland

March 1, 2018

DONALD BURRELL et al., Plaintiffs
v.
911 RESTORATION FRANCHISE, INC., et al., Defendants

          MEMORANDUM AND ORDER

          James K. Bredar Chief Judge

         This case was dismissed following the Court's grant of Defendants' motion to compel arbitration. The dismissal order was docketed on November 17, 2017. (ECF Nos. 19, 20.) All parties were represented by counsel, who were sent Notices of Electronic Filing by the Electronic Case Filing / Case Management system in the form of email notifications on the same day the dismissal order was docketed. On December 26, 2017, Plaintiffs' counsel, Harry M. Rifkin, Esq., filed a Notice of Appeal (ECF No. 21) that stated the following:

Petitioners, Donald Burrell, April Burrell and 911 Restoration of Baltimore, Inc. by their attorneys, Harry M. Rifkin and the Law Offices of Harry M. Rifkin, notice the appeal to the United States Court of Appeals for the Fourth Circuit of the Order entered by this Court on November 26, 2017 and all earlier judgments and orders in this case.

         On February 26, 2018, Mr. Rifkin filed a Request to Allow Late Filed Notice of Appeal. (ECF No. 24.) He indicated in his motion and in the accompanying sworn statement that he had suffered a stroke on October 21, 2017, that affected his balance and left him unable to stand, walk, or work. After a few weeks, his condition improved, but he was only able to work an hour or two a day because of extreme fatigue and a limited ability to concentrate. Finally, in late December 2017, he felt well enough to work at least several hours a day; he then filed the appeal notice as soon as he was able. Mr. Rifkin thus asserted that “his condition at the time constitutes excusable neglect causing him to file the appeal 9 days late on December 26, 2017.” Unfortunately, and despite the obvious existence of either excusable neglect or good cause for the late notice of appeal, this Court cannot grant the requested relief. Rule 4 of the Federal Rules of Appellate Procedure does not permit the Court any discretion in this regard.

         Under Rule 4(a)(1)(A), the time for filing a notice of appeal in a civil case is thirty days after entry of the judgment or order from which the appeal is taken. Late filing, however, may be permitted under Rule 4(a)(5) or Rule 4(a)(6), but only if those subsections' strict requirements are met.

         Subsection (5) reads as follows:

(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 motion is entered, whichever is later.

         Subsection (6) reads as follows:

         The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be ...

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