United States District Court, D. Maryland
MEMORANDUM AND ORDER
K. Bredar Chief Judge
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
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.
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.
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.
(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
(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.
(6) reads as follows:
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
(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 ...