Cupp et al v. Straley et al

Filing 47

Order by Hon. James Donato granting 43 Motion for Extension of Time to File. (jdlc1S, COURT STAFF) (Filed on 2/4/2016) (Additional attachment(s) added on 2/4/2016: # 1 Certificate/Proof of Service) (lrcS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONALD CUPP, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 3:15-cv-01565-JD
ORDER RE MOTION TO EXTEND
TIME

v.
KATIE STRALEY, et al.,

Re: Dkt. No. 43

Defendants.

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On August 10, 2015, the Court dismissed this home-foreclosure case with prejudice under

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the Rooker-Feldman doctrine and ordered entry of judgment against plaintiffs. Dkt. No. 42. On

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November 9, 2015, plaintiffs filed a motion for extension of time to file a notice appealing the

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Court’s dismissal order. Dkt. No. 43. Plaintiffs assert that they “never received written or

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electronic notice” of the Court’s order and should be afforded an extension of time to file a notice

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of appeal. Id. at 1.

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Under Federal Rule of Appellate Procedure (“FRAP”) 4(a)(1)(A), plaintiffs are required to

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file a notice of appeal “within 30 days after entry of the judgment or order appealed from.” It

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appears that the Clerk of the Court did not enter judgment in this case as the Court directed. Dkt.

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No. 42 at 6. Consequently, although the order dismissing the case was entered on August 10,

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2015, judgment was not effectively entered in the docket until 150 days later, on January 7, 2016.

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See Fed. R. Civ. P. 58(c)(2)(B). This means that plaintiffs have until February 8, 2016 to file a

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notice of appeal without an extension, since February 6, 2016 is a Saturday. FRAP 26(a)(1)(C).

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FRAP 4(a)(5) provides plaintiffs with a 30-day window after February 8, 2016 to move for

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additional time to file a notice of appeal. Plaintiffs are acting pro se and so the Court liberally

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construes their motion as a timely request for an extension of time under this rule. The Court also

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finds that plaintiffs’ sworn declaration that they did not receive notice of the dismissal order and

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their pro se status establish good cause to allow the extension. See Dkt. No. 46 ¶ 2. There also

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appears to be good cause for an extension given the confusion of parties on both sides of this case

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about the proper timeline for an appeal when the separate document requirement of Federal Rule

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of Civil Procedure 58(a) was not met. Accordingly, the Court grants plaintiffs an extension under

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FRAP 4(a)(5).

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Under FRAP 4(a)(5)(C), the Court may only extend the time to file a notice of appeal up to

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“30 days after the prescribed time or 14 days after the date when the order granting the motion is

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entered, whichever is later.” Here, the “prescribed time” refers to the “time prescribed by this
Rule 4(a),” or February 8, 2016. See FRAP 4(a)(5)(A)(i). The Court grants plaintiffs an extension

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United States District Court
Northern District of California

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to file their notice of appeal to March 9, 2016.

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The Court advises plaintiffs that once this window expires, neither the district nor circuit

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court will have the power to grant an extension, good cause or due process concerns

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notwithstanding. United States ex rel. Haight v. Catholic Healthcare West, 602 F.3d 949, 954-955

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(9th Cir. 2010).

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IT IS SO ORDERED.
Dated: February 4, 2016

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JAMES DONATO
United States District Judge

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