De Jourday v. JP Morgan Chase Bank, N.A. et al

Filing 26

ORDER Denying Motion for an Extension of Time to Appeal. Signed by Judge Larry Alan Burns on 4/14/12.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OZSTAR DE JOURDAY,

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CASE NO. 11cv1052-LAB (MDD)
Plaintiff,

ORDER DENYING MOTION FOR
AN EXTENSION OF TIME TO
APPEAL

vs.
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JP MORGAN CHASE BANK, N.A., etc.,
et al.,

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Defendants.
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The Court previously denied without prejudice De Jourday’s motion for an extension

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of time to appeal the dismissal of his claims. The denial was without prejudice because the

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Court wanted to hear more from De Jourday about how, exactly, he missed the deadline to

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appeal.

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To review, the Court granted JP Morgan’s motion to dismiss on December 16, 2011,

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giving De Jourday until January 15, 2012 to file a notice of appeal. He missed that deadline,

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and then on February 7, 2012 filed the pending motion. De Jourday’s original explanation

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for missing the deadline was that his original lawyer, Fanny Cherng, didn’t mention a

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deadline, and he continued to negotiate a settlement with JP Morgan, anyway, under the

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assumption that he’d reach one and no appeal would be necessary.

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De Jourday now adds that he didn’t think about appealing the Court’s order until a

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conversation with his father in mid-January 2012, probably around the time that his deadline
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to appeal passed. (De Jourday Decl. ¶ 6.) Pretty quickly, he started contacting appellate

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lawyers, the first of whom, on January 21, 2012, told him he’d missed the deadline. (De

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Jourday Decl. ¶ 7–8.) De Jourday’s story is largely corroborated by Ms. Cherng, who admits

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that in her conversations with De Jourday after the Court dismissed his claims she never

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mentioned a 30-day deadline to appeal. (Cherng Decl. ¶¶ 5, 7.) She also confirms that

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even after the Court granted JP Morgan’s motion to dismiss, she continued to negotiate a

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settlement on De Jourday’s behalf. (Cherng Decl. ¶¶ 4, 6.)

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There are still a couple of discrepancies.

First, Ms. Cherng claims she was

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negotiating with JP Morgan “through most of January 2012.” (Cherng Decl. ¶ 6.) According

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to JP Morgan, negotiations didn’t last nearly that long. Rather, it proposed a settlement to

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Ms. Cherng on December 20, 2011, she requested some changes on December 29, those

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changes were rejected on January 3, 2012, and Ms. Cherng didn’t respond until the end of

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the month, after JP Morgan sent De Jourday a notice to vacate. (Dillon Decl. ¶¶ 3–6.)

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Second, De Jourday claims he learned of the appeal deadline on January 21, 2012

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from the first appellate attorney he contacted, Timothy Branson at Gordon & Rees. (De

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Jourday Decl. ¶¶ 7, 9.) But according to Ms. Cherng, De Jourday asked her how long he

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had to appeal on or around January 23, 2012, after twice being told she did not handle

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appeals. (Cherng Decl. ¶ 8.) If De Jourday indeed got the idea to appeal in a conversation

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with his father in mid-January 2012 (De Jourday Decl. ¶ 6), at which point he immediately

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contacted Ms. Cherng on January 11 to discuss an appeal (De Jourday Decl. ¶ 6; Cherng

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Decl. ¶ 7) and then turned his focus to finding an appellate lawyer, this doesn’t add up. De

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Jourday and Ms. Cherng allow for some movement in the dates by prefacing them with “On

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or about,” but the story here still seems either incomplete or confused. The Court is also

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perplexed by Ms. Cherng’s claim that when she offered to look up the appeal deadline for

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De Jourday on January 23, 2012, he said that wasn’t necessary. (Cherng Decl. ¶ 8.)

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As the Court explained in its previous order, De Jourday must show excusable neglect

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or good cause before the Court can extend his time to appeal. Fed. R. App. P. 4(a)(5). The

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Court considers the following factors in determining whether De Jourday has made that
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showing: (1) the danger of prejudice to the non-moving party; (2) the length of delay and its

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potential impact on judicial proceedings; (3) the reason for the delay, including whether it

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was within the reasonable control of the movant; and (4) whether the moving party’s conduct

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was in good faith.

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Partnership, 507 U.S. 380, 395 (1993). Excusable neglect is an elastic concept that’s better

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committed to the Court’s discretion than some set of per se rules. Pincay v. Andrews, 389

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F.3d 853, 860 (9th Cir. 2004).

Pioneer Investment Services Co. v. Brunswick Associates Ltd.

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There is some prejudice to JP Morgan here. Not only will it have to defend an appeal

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weeks after it was assured this case was over, but the record now shows that it served De

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Jourday with a notice to vacate after his deadline to appeal passed, presumably with plans

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to move on his home. The length of delay here cuts slightly in De Jourday’s favor. His

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deadline to appeal fell on January 15, 2012, he learned of the deadline (he claims) just one

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week later, and he then made a diligent effort to locate appellate counsel. The reason for

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the delay? The Court now has confirmation that JP Morgan continued to negotiate with De

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Jourday after the Court dismissed his claims and that his trial counsel, Fanny Cherng, never

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mentioned an appeal deadline to him, but there are still some holes in his story that

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undermine it. The last question is whether De Jourday is acting in good faith. He says he

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is (De Jourday Decl. ¶ 9), but the evolution of his story and the history of this case—an

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attempted loan modification, two bankruptcies, and then a “produce the note” lawsuit—leave

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the Court with doubts.

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Finally, the manner in which De Jourday speaks of appealing the Court’s order

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dismissing his claims suggests that he conceives of an appeal as simply the next legal

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maneuver when one doesn’t prevail at the district court level. (De Jourday Decl. ¶ 6 (“I got

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the idea that perhaps I could appeal the Court’s December 16, 2011 Order . . . in the event

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that I was unable to settle with Defendant.”).) But an appeal isn’t to be taken simply as a

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matter of course; it’s to be taken out of a sincere belief that the district court got the law or

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the facts wrong. To review, the Court’s rather straightforward dismissal of De Jourday’s

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RESPA claim deprived him of $350 in actual damages and, potentially, his attorney’s fees.
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And the Court found no merit whatsoever to De Jourday’s wrongful foreclosure claim. The

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Court doesn’t mean to be arrogant here. There is always the chance that it misinterprets or

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misapplies the caselaw. In this case, however, the decision to dismiss De Jourday’s claims

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was not very complicated, and the Court does not sense in the least that De Jourday truly

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believes his claims are righteous and wants to pursue them further. This informs the Court’s

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view of whether De Jourday is acting in good faith.

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Taking all of the Pioneer factors into account here, the Court does not find excusable

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neglect here. De Jourday may lack legal training, but he is a sophisticated realtor in a

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sophisticated San Diego neighborhood.

People without legal training still know that

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appealing a court’s decision is always an option, and from that they can be expected to intuit

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that there’s a limited window within which to do so. De Jourday’s motion for an extension

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of time to appeal is therefore DENIED.

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IT IS SO ORDERED.
DATED: April 14, 2012

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HONORABLE LARRY ALAN BURNS
United States District Judge

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