Carr et al v. Ferkam Inc

Filing 47

ORDER Denying 45 Plaintiffs Request To Reopen the Time ToFile an Appeal by Judge Robert E. Blackburn on 2/23/2016.(cmira)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-01419-REB-MEH
KERMAN-RAY CARR, and
PRISCILLA-DENISE CARR,
Plaintiffs,
v.
FERKAM, INC. d/b/a Extreme Towing and Recovery, et al,
Defendants.

ORDER DENYING MOTION TO FILE OUT-OF-TIME APPEAL
Blackburn, J.
The matter before me is plaintiff’s Request To Reopen the Time To File an
Appeal [#45],1 filed February 22, 2016. I deny the requested relief.2
A party seeking to appeal a civil judgment must file a notice of appeal with the
clerk of the district court “within 30 days after entry of the judgment or order appealed
from.” FED. R. APP. P. 4(a)(1)(A). The time limits set forth in Rule 4 are “mandatory and
jurisdictional.” Browder v. Director, Department of Corrections of Illinois, 434 U.S.
257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978); see also Bishop v. Corsentino,
371 F.3d 1203, 1206 (10th Cir. 2004). The district court may “extend the time to file a
1

“[#45]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

Because plaintiffs are proceeding pro se, I have construed their pleadings and papers more
liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).

notice of appeal” if “a party so moves no later than 30 days after the time prescribed by
this Rule 4(a) expires” and demonstrates good cause or excusable neglect for the
failure to timely file. FED. R. APP. P. 4(a)(5). If no notice of appeal is filed before the
deadline provided by Appellate Rule 4(a)(1) or any new deadline set pursuant to Rule
4(a)(5), the appellate court lacks jurisdiction to hear the appeal.
Judgment in this case was entered on November 15, 2015 [#37]. Thus, a notice
of appeal was due under Appellate Rule 4(a)(1) by December 28, 2015,3 and a motion
to extend that deadline was required to be filed no later than January 27, 2016. The
instant motion was not filed until February 22, 2016. As the appellate court would lack
jurisdiction over any appeal under these circumstances, plaintiffs’ motion must be
denied.4 See Browder, 98 S.Ct. at 561 (time limits of Appellate Rule 4 are “mandatory
and jurisdictional”).
THEREFORE, IT IS ORDERED that plaintiff’s Request To Reopen the Time To
File an Appeal [#45], filed February 22, 2016, is denied.
Dated February 23, 2016, at Denver, Colorado.
BY THE COURT:

3

Thirty days from November 25, 2015, was Christmas Day, a federal holiday and a Friday. The
notice of appeal would have been due on the next business day, which was Monday, December 28,
2015. See FED. R. APP. P. 26(a)(1)(C).
4

Even if the motion had been timely filed, plaintiffs have failed to show excusable neglect or good
cause for the failure to timely assert their appellate rights. FED. R. APP. P. 4(a)(5)(A)(ii). As set forth in my
Order Denying Motion To Reconsider [#46], filed February 23, 2016, plaintiffs’ purported failure to
receive mailings from the court is a dilemma entirely of their own making and would not support a
favorable finding under Appellate Rule 4(a)(5).

2