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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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12 James Alvin Dolph,
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Plaintiff,
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vs.
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Arizona Community
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Protection and Treatment
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Center, et al.
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Defendants.
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____________________________)

No. CIV 10-1162 PHX RCB(MHB)
O R D E R

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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

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he does not specify which Court) “to verify the court[’]s

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possession” of his appeal.

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that the Court “never received” his appeal, plaintiff is

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inquiring as to whether it is still possible for him to file

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his appeal.

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extension to allow him “to gather [his] evidence.”

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1:16.

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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

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Treatment Center and Annette Antoine, oppose plaintiff’s

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request for an extension as untimely under Fed.R.App.P.

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4(a)(5)(i).

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plaintiff is not entitled to an extension of time because he

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has not made the requisite showing of “excusable neglect” or

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“good cause” as Fed.R.App.P. 4(a)(5)(ii) requires. Defendant

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Randy Pence joins in that opposition.

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Plaintiff Dolph did not file a reply and the time to do so

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has passed.

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reply, “if th[e] party so desires[,]” within 7 days after

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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

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Defendants’ position is well taken on both counts.

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4(a)(5) allows a district court to extend the time to file a

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notice of appeal if two conditions are met.

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must “so move[] no later than 30 days after the time

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prescribed by Rule 4(a) expires[.]” Fed.R.App.P.

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4(a)(5)(A)(i).

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extension of time must be filed within 60 days after the date

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of entry of judgment.”

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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

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Second,

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plaintiff Dolph, as the party seeking such an extension, must

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show “excusable neglect or good cause.”

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4(a)(5)(A)(ii).

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these requirements.

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Fed.R.App.P.

Plaintiff Dolph cannot satisfy either of

Plaintiff’s motion for an extension is untimely in that

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it was filed well beyond the 60 days allowed under Rule

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4(a)(5)(A)(i).

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clear that the district court lacks jurisdiction to grant any

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extension motion that is not filed within the 30 day grace

Moreover, “cases from other circuits make it

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period allowed by FRAP 4(a)(5).”

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Chonquing Co. v. Seedling, Worldmodal Network Services, 2007

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WL 1235444, at *4 (D.Or. 2007) (citing, inter alia, Cohen v.

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Empire Blue Cross and Blue Shield, 142 F.3d 116, 118 (2nd Cir.

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1988)).

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China Nat. Chemical Const.

Even if this court could consider plaintiff Dolph’s

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untimely motion, it would not grant an extension because he

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has not made the necessary showing under Rule 4(a)(5)(A)(ii).

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“The good cause and excusable neglect standards [under that

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Rule] have ‘different domains.’” Fed.R.App.P. 4(a)(5))A)(ii),

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Advisory Committee Notes on 2002 Amendments (citation

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omitted).

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is not inclusive of the other.”

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excusable neglect standard applies in situations in which

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there is fault[,]” whereas “[t]he good cause standard applies

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in situations in which there is no fault –- excusable or

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otherwise.”

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no reason for his untimely filing and the court declines to

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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
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“excusable neglect” or “good cause.”
Accordingly, because plaintiff Dolph’s motion seeking an

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extension of time in which to file his appeal is untimely,

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and because he has shown neither “excusable neglect” or “good

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cause” for that untimely filing, the court hereby DENIES

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plaintiff’s motion (Doc. 32).

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DATED this 29th day of October, 2012.

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16 Copies to plaintiff pro se and counsel of record
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