Harvey v. Ozark Community Hospital (OCH) Health System et al
OPINION AND ORDER granting 19 Motion for Extension of Time to File notice of appeal filed by Judith A. Harvey. Signed by Honorable P. K. Holmes, III on July 6, 2017. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JUDITH A. HARVEY
Case No. 5:16-CV-5314
OZARK COMMUNITY HOSPITAL (OCH)
HEALTH SYSTEM; PAUL TAYLOR, CEO
of OCH, in his official capacity only; and
MARK GLOVER, Psychologist, in his official
OPINION AND ORDER
Before the Court is Plaintiff Judith A. Harvey’s motion (Doc. 19) for an extension of time
to file her notice of appeal of the judgment (Doc. 18) entered in this case on May 30, 2017.
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal must be filed with
the district clerk within thirty days after entry of the judgment. Ms. Harvey’s notice of appeal was
not filed until July 5, 2017, approximately thirty-six days after the Court dismissed the case and
entered judgment. If a party moves to extend the time to file a notice of appeal “no later than 30
days after the time prescribed in Rule 4(a) expires[,]” the court may grant an extension upon that
party’s showing of “excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(ii).
“The good cause standard applies in situations in which there is no fault—excusable or
otherwise. In such situations, the need for an extension is usually occasioned by something that is
not within the control of the movant.” See Fed. R. App. P. 4(a)(5)(A)(ii) advisory committee’s
notes to 2002 amendments. The Eighth Circuit has determined that “[t]he good cause standard is
applicable only when the party seeking an extension files her 4(a)(5) motion within the thirty-day
period allowed for filing a timely notice of appeal, that is, when she is seeking permission to file
late rather than permission for having filed late.” Lowry v. McDonnell Douglas Corp., 211 F.3d
457, 464 n. 5 (8th Cir. 2000). Because Ms. Harvey’s motion for an extension of time was filed
after the period for filing a timely notice of appeal, the good cause standard is not applicable.
Conversely, the excusable neglect standard “applies in situations in which there is
fault.” See Fed. R. App. P. 4(a)(5)(A)(ii) advisory committee’s notes to 2002 amendments. In
determining whether excusable neglect exists, the Court must “tak[e] account of all relevant
circumstances surrounding the party’s omission” and make an equitable determination. Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
circumstances include “the danger of prejudice to the [non-moving party], the length of the delay
and its potential impact on judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good faith.” Id.
These four factors are not equally important; “the excuse given for the late filing must have the
greatest import” and “will always be critical to the inquiry.” Lowry, 211 F.3d at 463. The Court
determines that Defendants would not be prejudiced by granting Ms. Harvey’s motion, that a delay
of less than one week will have minimal impact on the judicial proceedings, and that Ms. Harvey
has acted in good faith. Finally, given her pro se status, the Court finds Ms. Harvey’s stated reasons
for the delay—primarily, that she did not receive the judgment until June 9, 2017, and that she was
originally unaware of the appeal deadline—to be sufficient for finding her neglect to be excusable
when viewed in conjunction with the other three Pioneer factors because “excusable neglect
includes late filings caused by inadvertence, mistake, or carelessness.” Treasurer, Trs. of Drury
Indus., Inc. Health Care Plan & Trust v. Goding, 692 F.3d 888, 893 (8th Cir. 2012)
(quoting Sugarbaker v. SSM Health Care, 187 F.3d 853, 856 (8th Cir. 1999)) (internal quotation
IT IS THEREFORE ORDERED that Plaintiff Judith A. Harvey’s motion (Doc. 19) for an
extension of time to file her notice of appeal is GRANTED. Ms. Harvey’s deadline for filing her
notice of appeal is extended to July 6, 2017, to include the notice of appeal which has already been
entered (Doc. 20).
IT IS SO ORDERED this 6th day of July, 2017.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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