Rochelle v. CVS Caremark

Filing 33

MEMORANDUM AND ORDER denying 32 Motion for Extension of Time to File Appeal. Mr. Rochelle may file another motion for extension of time that corrects the deficiencies identified in this order. If Mr. Rochelle chooses to seek an extension, he must file his motion no later than August 10, 2015. Signed by District Judge Daniel D. Crabtree on 7/24/2015. Mailed to pro se party Marquan Rochelle by regular mail. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARQUAN ROCHELLE,
Plaintiff,
Case No. 14-cv-2473-DDC-TJJ
v.
CVS CAREMARK,
Defendant.

MEMORANDUM AND ORDER
On July 16, 2015, the Court issued an order directing plaintiff Marquan Rochelle to
submit his motion to appeal in forma pauperis in a format the Court could access no later than
August, 5, 2015 (Doc. 31). As the Court outlined in that order, plaintiff had attempted to file
such a motion on July 10, 2015, but the Court had been unable to open the digital file containing
it.
On July 21, 2015, Mr. Rochelle faxed his motion to the Clerk of the Court’s office (Doc.
32). The motion states, in its entirety:
Motions For Extension to Appeal in Permission Forma Pauperis
Requesting the court motion to file appeal form within the 30 day limit.
Civil action No. 14-2473-DDC-TJJ
July 9, 2015.
S/Marquan Rochelle
Doc. 32 at 1. The Court construes Mr. Rochelle’s motion as asking for two forms of relief:
(1) permission to file his appeal in forma pauperis; and (2) an extension of time to file his notice
of appeal.

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First, the Court grants plaintiff’s motion to file his appeal in forma pauperis. Under
Federal Rule of Appellate Procedure 24(a)(3):
A party who was permitted to proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis without further authorization,
unless:
(A) the district court—before or after the notice of appeal is filed—
certifies that the appeal is not taken in good faith or finds that the
party is not otherwise entitled to proceed in forma pauperis and states
in writing its reasons for the certification or finding; or
(B) a statute provides otherwise.
Fed. R. App. P. 24. The Court granted Mr. Rochelle’s motion to proceed in forma pauperis in
this case on September 26, 2014 (Doc. 6). The Court lacks any reason to think that Mr. Rochelle
does not seek to appeal in good faith, that he is not otherwise entitled to proceed in forma
pauperis, or that another statute requires him to again receive authorization to proceed in forma
pauperis. As a result, the Court grants Mr. Rochelle’s motion to the extent he wishes to file his
notice of appeal in forma pauperis.
Second, the Court construes Mr. Rochelle’s motion as asking for an extension of time to
file his notice of appeal. In a civil case, the notice of appeal generally “must be filed with the
district clerk within 30 days after the judgment or order appealed from is entered.” Fed. R. App.
P. 4(a); see also 28 U.S.C. § 2107 (requiring a notice of appeal of a civil judgment to be filed
within thirty days of judgment). “The district court, however, may extend the time upon a
showing of ‘excusable neglect or good cause,’ if a party moves for an extension no later than
thirty days after the appeal time has expired.” Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th
Cir. 2004) (quoting Fed. R. App. P. 4(a)(5)(A)).
Mr. Rochelle filed his motion for extension well within 30 days after the time for appeal
expired. In this case, August 10, 2015 is 30 days after Mr. Rochelle’s time for appeal expired,
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see Fed. R. App. 26(a)(1), and he filed his motion for extension on July 21, 2015. But the Court
denies Mr. Rochelle’s motion because he fails to make any showing of “excusable neglect or
good cause” for needing an extension. Fed. R. App. P. 4(a)(5)(A). Mr. Rochelle bears the
burden of demonstrating excusable neglect or good cause. See Bishop, 371 F.3d at 1207.
Because his motion, in its current form, contains no argument about either excusable neglect or
good cause, the Court cannot grant plaintiff’s motion for extension.
Nevertheless, Mr. Rochelle may file another motion for extension of time that corrects
the deficiencies identified in this order. Specifically, he must show either excusable neglect for
failing to file his notice of appeal in a timely fashion or good cause for why he did not do so.
The Court also reminds Mr. Rochelle that he still must comply with the time deadlines in Rule
4(a)(5)(A). As a result, if Mr. Rochelle again chooses to seek an extension, he must file his
motion no later than August 10, 2015. See Fed. R. App. P. 4(a)(5)(A); Fed. R. App. P. 26(a)(1).
IT IS SO ORDERED.
Dated this 24th day of July, 2015, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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