Elmore v. Cooper et al

Filing 218

ORDER granting in part and denying in part 159 Motion for Leave to Appeal. Plaintiff has 14 days from the date this Order is entered to appeal this Court's Order denying his Motion to Amend/Correct Judgment and no extensions will be granted. Signed by Judge William T. Moore, Jr. on 07/05/2011. (lmm)

IN THE UNITED STATES DISTRICT COURT FOR:=
THE SOUTHERN DISTRICT OF GEORGIA
ZGIIJUL -.5
WAYCROSS DIVISION

ELMON MCCARROLL ELMORE, JR., )

LERç

Plaintiff,
me

CASE NO. CV508-004

PEGGY ANN COOPER, Assistant
Warden of Coffee Correctional
Facility, Individually and in
Her Official Capacity, and
CORRECTIONS CORPORATION OF
AMERICA,
Defendants.

ORDER

This case has been remanded by the Eleventh Circuit
Court of Appeals. (Doc. 216.) In its opinion, the Eleventh
Circuit vacated this Court's prior order denying Plaintiff's
Motion for Leave to File Out of Time Appeal (Doc. 159).
Apparently, the Eleventh Circuit construed Plaintiff's
motion as a request to file an out of time appeal of this
Court's order denying Plaintiff's Motion to Amend/Correct
Judgment (Doc. 155) .'

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As a result, the Eleventh Circuit

The Court has, once again, reviewed both Plaintiff's Motion
for Leave to File Out of Time Appeal (Doc. 159) and Notice
of Appeal (Doc. 160). Based on these documents, this Court
cannot find any intent by Plaintiff to appeal any order
other than that dismissing his case. (See Doc. 160 ("Notice
is hereby respectfully given that [Plaintiff] hereby appeals
to the United States Court of Appeals for the Eleventh
Circuit from the order granting Defendant's Motion for

remanded the case to this Court to determine if Plaintiff
"has satisfied the requirements of Rule 4(a) (6) that must be
met in order to give the district court discretion to reopen
the time to appeal from the order denying his motion to
alter or amend that judgment." (Doc. 216 at 5.)
In that regard, a review of the docket indicates a
strong possibility that the Clerk of Court failed to mail
Plaintiff a copy of this Court's order denying his Motion to
Amend/Correct Judgment. While the docket contains a
notation that Plaintiff was mailed a copy of the order
dismissing his case, there is no docket entry reflecting
that Plaintiff was mailed a copy of the order denying his
Motion to Amend/Correct Judgment. Therefore, the Court
concludes that Plaintiff did not receive notice of the entry
of the order denying his Motion to Amend/Correct Judgment,
entitling him to a reopening of the time to file a notice of

Summary Judgment and Dismissing Plaintiff's Complaint,
entered in the action on September 23, 2009 with Plaintiff's
Motion to Amend/Correct being denied on Nov. 6, 2009.")
(emphasis added).) Therefore, this Court did not reach the
question of whether Plaintiff should be permitted to appeal
the Court's order denying his Motion to Amend/Correct
Judgment because Plaintiff did not raise it in his Notice of
Appeal. Nevertheless, the Eleventh Circuit has apparently
construed the Notice of Appeal to be appealing from both
orders, leaving this Court with the task of determining
whether Plaintiff should be allowed, pursuant to Federal
Rule of Appellate Procedure 4(a) (6), to file an out of time
appeal from this Court's order denying his Motion to
Amend/Correct Judgment.
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appeal with respect to that order.

See Fed. R. App. P.

4(a) (6). Accordingly, Plaintiff's Motion for Out of Time
Notice of Appeal is GRANTED IN PART and he shall have
fourteen days from the date this order is entered to file a
notice of appeal from this Court's order denying his Motion
to Amend/Correct Judgment. Plaintiff is WARNED that the
Court will not grant any extensions to this fourteen-day
deadline.
This, however, does not alter the Court's original
determination that Plaintiff is not entitled to a reopening
of the time to file an appeal from the order dismissing his
case. As discussed in this Court's previous order (Doc.
178), the Federal Rules of Appellate Procedure state that
the time for filing a notice of appeal can be reopened only
where a party 'did not receive notice . . . of the entry of
the judgment or order sought to be appealed." Fed. R. App.
P. 4 (a) (6) (emphasis added) . While the rule states that the
time for filing a notice of appeal is tolled when a party
files a motion to alter or amend the judgment, Id.
4(a) (4) (A) (iv), the time resumes running upon the entry of
the order disposing of" such a motion, Id. 4(a) (4) (A)
(emphasis added) . Therefore, while the time to file a
notice of appeal can be reopened where a party failed to
receive notice of the entry of a judgment or order, the time

to file a notice of appeal is only tolled until a court
enters an order disposing of the tolling motion. In short,
the Rules do not require that a party receive notice of the
entry of the order disposing of the tolling motion for the
time to file a notice of appeal to resume running—the clock
resumes ticking simply upon the entry of the order disposing
of that motion on the court's docket. If the drafters of
the Federal Rules of Appellate Procedure intended to require
that a party receive notice of the entry of an order tolling
the time to file a notice of appeal for the tolling to
conclude, they knew how to include that requirement.
Therefore, the absence of the notice requirement in Rule
4(a)(4)(A) indicates an intention to require only the entry
of an order disposing of a tolling motion for the time to
file a notice of appeal to resume winding down.
In this case, Plaintiff received notice of the entry of
judgment dismissing his case no later than September 29,
2009. (Doc. 155 at 2.) Therefore, Plaintiff originally had
until October 29, 2009 to file his notice of appeal.
Plaintiff's October 5, 2009 Motion to Amend/Correct Judgment
(id.) tolled the time to file a notice of appeal until
November 6, 2009, when the Court entered an order denying
that motion (Doc. 157).

As a result of the tolling from

October 5 to November 6, 2009, the time for Plaintiff to

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file his notice of appeal was extended to December 1, 2009.
However, Plaintiff did not file his notice until January 21,
2010. (Doc. 160.) Therefore, Plaintiff's notice of appeal
was untimely, and the window for filing such a notice was
not subject to being reopened because, as discussed above,
Rule 4(a) (6) was inapplicable due to Plaintiff receiving
notice of the order dismissing his case.
The Court recognizes that this works a harsh result for
parties in Plaintiff's situation. However, the Court is not
free to simply ignore the text of the Rules and their
logical outcome, which require that the portion of
Plaintiff's motion requesting that he be allowed to file an
out of time appeal from this Court's order dismissing his
case be DENIED. Plaintiff is reminded that he has fourteen
days from the date this order is entered to appeal this
Court's order denying his Motion to Amend/Correct Judgment
and that no extensions will be granted.

SO ORDERED this

day of July 2011.

WILLIAM T. MOORE, J
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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