Dolph v. Arizona Community Protection and Treatment Center

Filing 35

ORDER because plaintiff Dolph's motion seeking an extension of time in which to file his appeal is untimely, and because he has shown neither "excusable neglect" or "good cause" for that untimely filing, the court hereby DENIES plaintiff's motion (Doc. 32 ). Signed by Senior Judge Robert C Broomfield on 10/29/2012.(KMG)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 James Alvin Dolph, 13 14 15 16 17 ) ) Plaintiff, ) ) vs. ) ) Arizona Community ) Protection and Treatment ) Center, et al. ) ) Defendants. ) ____________________________) No. CIV 10-1162 PHX RCB(MHB) O R D E R 18 19 On December 12, 2011, in accordance with this court’s 20 order signed December 10, 2011, and Fed.R.Civ.P. 41(b), the 21 Clerk of the Court entered judgment dismissing this action 22 without prejudice. Doc. 31. Approximately ten months later, 23 on October 10, 2012, plaintiff pro se James Alvin Dolph, filed 24 the pending motion styled as a “Request for extension by the 25 court[.]” Req. (Doc. 32). In his request, plaintiff claims 26 that on April 10, 2012, he mailed his appeal of that December 27 12, 2011 Order and Judgment. Id. at 1:12-13. Plaintiff 28 further claims that he called the Clerk of the Court (although 1 he does not specify which Court) “to verify the court[’]s 2 possession” of his appeal. 3 that the Court “never received” his appeal, plaintiff is 4 inquiring as to whether it is still possible for him to file 5 his appeal. 6 extension to allow him “to gather [his] evidence.” 7 1:16. 8 Id. at 1:14. Id. at 1:13. After being advised If so, he is seeking a 120 day Id. at The State defendants, Arizona Community Protection and 9 Treatment Center and Annette Antoine, oppose plaintiff’s 10 request for an extension as untimely under Fed.R.App.P. 11 4(a)(5)(i). 12 plaintiff is not entitled to an extension of time because he 13 has not made the requisite showing of “excusable neglect” or 14 “good cause” as Fed.R.App.P. 4(a)(5)(ii) requires. Defendant 15 Randy Pence joins in that opposition. 16 Plaintiff Dolph did not file a reply and the time to do so 17 has passed. 18 reply, “if th[e] party so desires[,]” within 7 days after 19 service of the responsive memorandum). Resp. (Doc. 33). Additionally, they argue that Joinder (Doc. 24). See LRCiv 7.2(d) (allowing for service of a 20 Defendants’ position is well taken on both counts. 21 4(a)(5) allows a district court to extend the time to file a 22 notice of appeal if two conditions are met. 23 must “so move[] no later than 30 days after the time 24 prescribed by Rule 4(a) expires[.]” Fed.R.App.P. 25 4(a)(5)(A)(i). 26 extension of time must be filed within 60 days after the date 27 of entry of judgment.” 28 WL 760279, at *1 (S.D.N.Y. 2006) (citation omitted). Rule First, the party “[I]n other words, the request for an Pruitt v. Metcalf & Eddy Inc., 2006 -2- Second, 1 plaintiff Dolph, as the party seeking such an extension, must 2 show “excusable neglect or good cause.” 3 4(a)(5)(A)(ii). 4 these requirements. 5 Fed.R.App.P. Plaintiff Dolph cannot satisfy either of Plaintiff’s motion for an extension is untimely in that 6 it was filed well beyond the 60 days allowed under Rule 7 4(a)(5)(A)(i). 8 clear that the district court lacks jurisdiction to grant any 9 extension motion that is not filed within the 30 day grace Moreover, “cases from other circuits make it 10 period allowed by FRAP 4(a)(5).” 11 Chonquing Co. v. Seedling, Worldmodal Network Services, 2007 12 WL 1235444, at *4 (D.Or. 2007) (citing, inter alia, Cohen v. 13 Empire Blue Cross and Blue Shield, 142 F.3d 116, 118 (2nd Cir. 14 1988)). 15 China Nat. Chemical Const. Even if this court could consider plaintiff Dolph’s 16 untimely motion, it would not grant an extension because he 17 has not made the necessary showing under Rule 4(a)(5)(A)(ii). 18 “The good cause and excusable neglect standards [under that 19 Rule] have ‘different domains.’” Fed.R.App.P. 4(a)(5))A)(ii), 20 Advisory Committee Notes on 2002 Amendments (citation 21 omitted). 22 is not inclusive of the other.” 23 excusable neglect standard applies in situations in which 24 there is fault[,]” whereas “[t]he good cause standard applies 25 in situations in which there is no fault –- excusable or 26 otherwise.” 27 no reason for his untimely filing and the court declines to 28 speculate. Those standards “are not interchangeable, and one Id. Id. Essentially, “[t]he In the present case, plaintiff Dolph offers Thus, plaintiff has not established either -3- 1 2 “excusable neglect” or “good cause.” Accordingly, because plaintiff Dolph’s motion seeking an 3 extension of time in which to file his appeal is untimely, 4 and because he has shown neither “excusable neglect” or “good 5 cause” for that untimely filing, the court hereby DENIES 6 plaintiff’s motion (Doc. 32). 7 DATED this 29th day of October, 2012. 8 9 10 11 12 13 14 15 16 Copies to plaintiff pro se and counsel of record 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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