Black v. No Named Defendant
ORDER granting in part and denying in part 57 Motion to Vacate by Judge R. Brooke Jackson on 6/14/17. (jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 15-cv-00340-RBJ
ORDER on MOTION TO VACATE
On March 21, 2017 this Court granted defendant’s motion to dismiss this case for failure
to prosecute. ECF No. 52 (minute order). A Final Judgment of Dismissal was entered on the
same date. ECF No. 55. On April 21, 2017 the plaintiff filed both a motion to vacate the
judgment and a notice of appeal. The defendant responded to the motion to vacate, and the
plaintiff filed a reply. ECF Nos. 60 and 61. However, believing that the notice of appeal
deprived this Court of jurisdiction to act on the motion to vacate, no ruling on that motion was
On May 23, 2017 the Clerk of the Tenth Circuit on behalf of the court issued an order in
response to defendant’s motion to dismiss the appeal for lack of jurisdiction on the ground that
the notice of appeal was untimely. ECF No. 62. The order notes that this Court had not
addressed plaintiff’s motion to vacate. It further noted that while it did not appear that the
motion to vacate had been filed in time to toll the time to appeal from the final judgment,
plaintiff’s reply in support of the motion to vacate contained “argument tending toward a request
for extension of time to appeal,” and that the reply “could be deemed a motion for extension of
time to appeal.” Id. at 1-2.
I will give the plaintiff the benefit of the doubt and construe her reply as a request for an
extension of time to appeal. Although it was not filed within 30 days after this Court’s entry of a
Final Judgment, I find that good cause exists based on plaintiff’s pro se status and her
misunderstanding of the rules, and that her reply served as notice to the opposing party. See Fed.
R. Civ. P. 4(a)(5)(A)(ii) and (B).
I further find that there is a clerical mistake arising from oversight in the Final Judgment
that should be corrected. See Fed. R. Civ. P. 60(a). Specifically, the Final Judgment, ECF No.
55, was silent on whether dismissal was with or without prejudice. The Court previously
informed Ms. Black that dismissal without prejudice might be the result of her failure to submit
to a deposition in Colorado. See ECF No. 44. The Final Judgment should have specified
“without prejudice.” The more severe sanction of dismissal with prejudice is inappropriate,
particularly because plaintiff’s resistance to returning to Colorado for a deposition was based on
her financial circumstances. See, e.g., AdvantEdge Business Group, L.L.C. v. Thomas E.
Mestmaker & Associates, Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (dismissal for failure to
prosecute with prejudice is a harsh remedy which should be used only after certain criteria are
considered). An Amended Final Judgment will issue correcting the oversight. To that extent the
motion to vacate judgment, ECF No. 57, is granted. The motion to vacate is otherwise denied.
Ordinarily the time to appeal can only be extended for 30 days after the prescribed time
or 14 days after the order granting the extension. See Fed. R. App. P. 4(a)(5)(C). But in this
instance my interpretation of the rules is that plaintiff can timely appeal within 30 days after
entry of the Amended Final Judgment pursuant to Fed. R. App. P. 4(a)(1)(A). Nevertheless, she
might wish to file her notice of appeal within 14 days of this order to be on the safe side.
DATED this 14th day of June, 2017.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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