Damiani v. Delaware State Police Troop 2 et al
MEMORANDUM ORDER: The Motion for an Extension of Time to appeal the October 4, 2017, Memorandum Opinion and Order (D.I. 309 ) is GRANTED. The time within Plaintiff may file a Notice of Appeal to the United States Court of Appeal for the Third Circuit is hereby extended to and included December 3, 2017. Signed by Judge Richard G. Andrews on 10/24/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PABLO A. DAMIANI,
Civil Action No. 12-1637-RGA
DETECTIVE DUFFY, et al.,
At Wilmington this¥ day of October, 2017, upon review of Plaintiff's motion
for an extension of time to appeal (D.I. 309):
Plaintiff filed a motion for an extension of time to file an appeal (D.I. 309) on
October 16, 2017. 1 Pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A), the
Court may grant Plaintiff's motion only if it was filed no later than thirty (30) days after
the expiration of the time originally prescribed by Rule 4(a)(1 ), and he shows either
excusable neglect or good cause. Plaintiff seeks an extension of time to appeal this
Court's October4, 2017 Memorandum Opinion and Order. (See D.I. 305, 306).
In his motion, Plaintiff states that he was recently transferred from a correctional
facility in Delaware to a correctional facility in Pennsylvania and has not yet received all
of his legal papers and documents. Nor has he had an opportunity to review his legal
The date of filing is determined pursuant to the "mailbox rule." See Houston v. Lack, 487 U.S. 266
(1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998); Gibbs v. Decker, 234 F. Supp. 2d 458, 463 (D.
Del. 2002). Here, Plaintiff's motion is dated October 16, 2017, and the envelope it was mailed in is postmarked October 17, 2017. Therefore, Plaintiff's motion was delivered to prison authorities for mailing on
either October 16 or October 17, 2017. The court concludes that Plaintiff's motion was filed on October
16, 2017 the date it was signed, and the earliest date possible that it could have been delivered to prison
officials in Pennsylvania for mailing.
As to the time requirement, the Court issued its Order granting Defendants'
motions for summary judgment on October 4, 2017. (D.I. 306). The Federal Rules of
Appellate Procedure require that a notice of appeal in a civil case be filed within 30 days
after the order appealed from is entered on the district court's docket. See Fed. R. App.
P. 4(a)(1 )(A). Here, the Order granting Defendants' motions for summary judgment was
entered October 4, 2017. Pursuant to the rule, Plaintiff is required to file a motion for
extension of time to appeal the order no later than November 3, 2017. Accordingly,
Plaintiff's motion for extension of time to file an appeal is timely under Rule 4(a)(5)(A)(i).
The Court must also determine whether Plaintiff has demonstrated excusable
neglect or good cause. Factors to consider in determining whether excusable neglect
exists include: "the danger of prejudice to the [nonmovant]; the length of the delay and
its potential impact on judicial proceedings; the reason for the delay, including whether it
was within the reasonable control of the movant; and whether the movant acted in good
faith." In re Diet Drugs Products Liability Litigation, 401 F.3d 143, 153 n.20 (3d Cir.
2005) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
395 (1993)). As for determining if there is good cause to grant an extension, the "good
cause standard applies in situations in which there is no fault - excusable or otherwise.
In such situations, the need for an extension is usually occasioned by something that is
not within the control of the movant." Fed. R. App. P. 4(a)(5)(A)(ii) Advisory
Committee's Note (2002 Amendments).
Here, Plaintiff seeks an extension because of his recent transfer from the
Delaware Department of Correction to the Pennsylvania Department of Corrections.
Plaintiff had no control over this transfer. The Court concludes that there is good cause
for granting an extension and that excusable neglect has been shown because the
Pioneer factors weigh in favor of granting Plaintiff's motion. More specifically, Plaintiff
made a good faith effort in filing his motion without delay. In addition, denying the
motion would produce a harsh result for Plaintiff. Therefore, the Court will grant the
motion for an extension of time to file a notice of appeal.
IT IS ORDERED that:
The motion for an extension of time appeal the October 4, 2017 memorandum
opinion and order (D.I. 309) is GRANTED. The time within which Plaintiff may file a
Notice of Appeal to the United States Court of Appeals for the Third Circuit is hereby
extended to and includes December 3, 2017, which is not more than thirty (30) days
after the prescribed time to file a civil appeal (i.e., November 3, 2017) under Rule
4(a)(1 )(A). See Fed. R. App. P. 4(a)(5)(C).
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