Grady v. Biter

Filing 55

ORDER granting in part and denying in part Petitioner's 54 Motion for Relief from Judgment. Petitioner may file a motion for reconsideration within 30 days of receiving this Order, but Court cannot grant any relief regarding his request for an extension of time to file a potential notice of appeal. Signed by Judge Cynthia Bashant on 9/6/2016. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARQUISE GRADY,

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Case No. 13-cv-2479-BAS(MDD)
Petitioner,

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v.

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ORDER GRANTING IN PART
AND DENYING IN PART
PETITIONER’S MOTION FOR
RELIEF FROM JUDGMENT

M.D. BITER,

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[ECF No. 54]
Respondent.

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On February 10, 2016, this Court overruled Petitioner Marquise Grady’s

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objections, adopted the magistrate judge’s report and recommendation in its entirety,

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and denied Mr. Grady’s habeas petition. Judgment was entered the next day.

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However, Mr. Grady did not receive a copy of the order until August 16, 2016. Mr.

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Grady now seeks “relief from the judgment,” which effectively is a request for an

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extension of time to file a motion for reconsideration and a notice of appeal.

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I.

Extension of Time To File Motion for Reconsideration

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With respect to Mr. Grady’s request for an extension of time to file a motion

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for reconsideration, Federal Rule of Civil Procedure 6(b) applies. Rule 6(b) states

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that “[w]hen an act may or must be done within a specified time, the court may, for
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good cause extend the time . . . with or without motion or notice if the court acts, or

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if a request is made, before the original time or its extension expires.” Fed. R. Civ. P.

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6(b)(1)(A). “Once the time has expired, a noticed motion for relief, based on a

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showing of excusable neglect, is required.” Gurvey v. Legend Films, Inc., No. 09-cv-

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942, 2012 WL 4061773, at *5 (S.D. Cal. Sept.14, 2012) (Battaglia, J.) (citing Fed. R.

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Civ. P. 6(b)(1)(B)).

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The Ninth Circuit has held that, for purposes of Rule 6(b), “excusable neglect”

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must be judged by the standard set forth in Pioneer Investment Services Co. v.

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Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). See Briones v. Riviera

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Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (citing Comm. for Idaho’s High

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Desert, Inc. v. Yost, 92 F.3d 814, 825 n.4 (9th Cir. 1996)) (“[T]his court [has] held

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that the Supreme Court’s analysis of ‘excusable’ neglect in Pioneer is applicable to

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Rule 6(b)[.]”). Under Pioneer, a “determination of whether neglect is excusable is an

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equitable one that depends on at least four factors: (1) the danger of prejudice to the

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opposing party; (2) the length of the delay and its potential impact on the proceedings;

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(3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman

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v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer, 507

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U.S. at 395).

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Supported by evidence and through no fault of his own, Mr. Grady

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demonstrates that he did not receive this Court’s judgment until August 16, 2016.

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Upon receiving notice of the judgment, he promptly filed this request on August 24,

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2016. Weighing the Pioneer factors, the circumstances heavily favor finding that the

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delay was the result of excusable neglect. See Bateman, 231 F.3d at 1223-24.

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Therefore, the Court GRANTS Mr. Grady’s request for an extension of time to file

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a motion for reconsideration. Mr. Grady may file a motion for reconsideration under

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Rule 59(e) within 30 days after being served with this order. This order does not

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apply to a motion for reconsideration under Rule 60(b) as the time to file has not yet

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lapsed. See Fed. R. Civ. P. 60(c)(1).
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II.

Extension of Time To File Notice of Appeal

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Federal Rule of Appellate Procedure 4(a)(1)(A) requires that a notice of appeal

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be filed by the appealing party “within 30 days after entry of judgment or order

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appealed from.” Rule 4(a)(5) permits the district court to extend the time to file a

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notice of appeal if: (1) “a party so moves no later than 30 days after the time

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prescribed by this Rule 4(a) expires”; and (2) “regardless of whether its motion is

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filed before or during the 30 days after the time prescribed by this Rule 4(a) expires,

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that party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). “No

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extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14

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days after the date when the order granting the motion is entered, whichever is later.”

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Fed. R. App. P. 4(a)(5)(C).

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Under Rule 4(a)(6), an appealing party may also move to reopen the time to

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file an appeal. “The district court may reopen the time to file an appeal for a period

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of 14 days after the date when its order to reopen is entered, but only if all of the

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following conditions are satisfied: (A) the court finds that the moving party did not

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receive notice under Federal Rule of Civil Procedure 77 (d) of the entry of the

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judgment or order sought to be appealed within 21 days after entry; (B) the motion

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is filed within 180 days after the judgment or order is entered or within 14 days after

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the moving party receives notice under Federal Rule of Civil Procedure 77 (d) of the

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entry, whichever is earlier; and (C) the court finds that no party would be prejudiced.”

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Fed. R. App. P. 4(a)(6).

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Unfortunately, under both Rule 4(a)(5) and 4(a)(6), the Court is not permitted

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to grant relief to Mr. Grady in his pursuit of a potential appeal. Admittedly through

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no fault of his own, Mr. Grady cannot satisfy the timing requirements under Rule

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4(a)(5)(A)(i) or Rule 4(a)(6)(B). Under Rule 4(a)(5)(A)(i), Mr. Grady must have

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requested the extension of time on or before April 11, 2016, but he ultimately did not

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do so until August 24, 2016. And under Rule 4(a)(6)(B), Mr. Grady must have

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requested reopening the time for appeal on or before August 9, 2016, which is 180
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days after entry of judgment. If the Court uses the later date under Rule 4(a)(6)(B)—

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14 days after Mr. Grady received notice of entry of judgment—he would have been

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allowed to request reopening the time for appeal by August 30, 2016, but the rule

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explicitly requires that the Court use the earlier of the two dates.

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Federal Rule of Civil Procedure 77(d)(2) explicitly states that “[l]ack of notice

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of the entry [of judgment] does not affect the time for appeal or relieve—or authorize

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the court to relieve—a party for failing to appeal within the time allowed, except as

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allowed by Federal Rule of Appellate Procedure 4(a).” Because Mr. Grady

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unfortunately cannot satisfy the timing requirements under either Rule 4(a)(5) or

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Rule 4(a)(6), the Court DENIES his request for an extension of time to file a notice

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of appeal. That said, Mr. Grady should note that Federal Rule of Appellate Procedure

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4(a)(4)(A) states that if a party timely files in the district court a motion to alter or

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amend the judgment under Rule 59, “the time to file an appeal runs for all parties

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from the entry of the order disposing of the last such remaining motion[.]”

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III.

Conclusion & Order

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In light of the foregoing, the Court GRANTS IN PART and DENIES IN

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PART Mr. Grady’s motion. Mr. Grady may file a motion for reconsideration within

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30 days of receiving this order, but the Court cannot grant any relief regarding his

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request for an extension of time to file a potential notice of appeal.

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IT IS SO ORDERED.

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DATED: September 6, 2016

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