Tomasello v. Arizona, State of et al

Filing 39

ORDER re: 28 Reply to Order (CA Number 14-16322) - IT IS THEREFORE ORDERED that Plaintiff's Request to Reopen the Time to Appeal Pursuant to Federal Rule of Appellate Procedure 4(a)(6) (Doc. 28 ) is granted. (See document for further details). Signed by Judge Neil V Wake on 10/9/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Tomasello,

No. CV-14-00029-PHX-NVW
Plaintiff,

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v.

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ORDER

Arizona, State of, et al.,

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Defendants.

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Before the Court is the Court of Appeals’ Order (Doc. 36) directing this Court to

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construe Petitioners Reply to Order Dated April 14, 2014 (Doc. 28) as a timely request to

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reopen the time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6).

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This Court ordered the Clerk to enter judgment in Plaintiff’s suit on April 14,

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2014. On May 19, 2014, Plaintiff informed the Court that he had not received notice of

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the entry of judgment until May 16, 2014. Plaintiff filed a formal notice of appeal on

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July 11, 2014, after more than the thirty days for filing an appeal permitted by Federal

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Rule of Appellate Procedure 4(a)(1)(A). Per the Court of Appeals’ instruction, this Court

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treats Plaintiff’s May 19, 2014, submission as a timely request to reopen the time to

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appeal. Under Rule 4(a)(6), the district court may reopen the time to file an appeal for a

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period of 14 days, “but only if all the following conditions are satisfied: (A) the court

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finds that the moving party did not receive notice under Federal Rule of Civil Procedure

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77(d) of the entry of the judgment or order sought to be appealed within 21 days after

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entry; (B) the motion is filed within 180 days after the judgment or order is entered or

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within 14 days after the moving party receives notice under Federal Rule of Civil

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Procedure 77(d) of the entry, whichever is earlier; and (C) the court finds that no party

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would be prejudiced.” Fed. R. App. P. 4(a)(6).

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Throughout the course of this litigation, Plaintiff has received physical copies of

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many of the Court’s orders, yet on other occasions mail sent to Plaintiff has been returned

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as undeliverable. There is no readily apparent explanation for why some documents sent

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to Plaintiff’s address of record were received while others ostensibly were not.

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Concerned that Plaintiff may have been screening his mail to avoid certain

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correspondence, the Court on September 9, 2014, ordered Plaintiff to submit, by

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September 22, 2014, “copies of all written instructions or communications between him

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and the mailbox address” he provided to the Court, “including all communications

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concerning what address is sufficient to receive mail and what mail to reject.” Doc. 37.

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To date, Plaintiff has not responded to that order. Thus there is reason to question

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whether Plaintiff in fact never received notice that the Court had entered judgment

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against him. Nevertheless, giving Plaintiff the benefit of any possible doubt, it appears

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he has met the requirement of subpart (A) of Rule 4(a)(6). See United States v. Withers,

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638 F.3d 1055, 1061-62 (9th Cir. 2011) (finding rule’s first prong satisfied where the

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appellant “made an unchallenged assertion that he did not receive timely notice of

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judgment”). Plaintiff filed his Motion with the Court both within 14 days of receiving

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notice and within 180 days of the entry of judgment, as required by subpart (B). When

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“generously construed as … a motion to reopen the time for filing an appeal,” id. at 1062,

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Plaintiff’s May 19, 2014, submission passes the test laid out in Rule 4(a)(6).

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IT IS THEREFORE ORDERED that Plaintiff’s Request to Reopen the Time to
Appeal Pursuant to Federal Rule of Appellate Procedure 4(a)(6) (Doc. 28) is granted.
Dated this 9th day of October, 2014.

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