Kennedy #237216 v. Froberg et al

Filing 27

MEMORANDUM OPINION AND ORDER granting plaintiff's motion for extension of time to file his notice of appeal. Plaintiff's January 26, 2010 notice of appeal (Dkt. No. 24) is timely ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

K e n n e d y #237216 v. Froberg et al

D o c . 27

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

M O N T E Z KENNEDY, P l a in tif f , F ile No. 2:08-CV-26 v. H O N . ROBERT HOLMES BELL M A R Y ANN FROBERG, et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER T h is matter is before the Court on remand from the Sixth Circuit Court of Appeals for th e limited purpose of ruling on Plaintiff's pending November 25, 2009, Rule 4(a)(5) motion fo r an extension of time to file his appeal. (Dkt. No. 26, 6th Cir. Order; Dkt. No. 19, Pl.'s M o t.) For the reasons that follow, Plaintiff's motion will be granted. A n order dismissing Plaintiff's complaint was entered on October 30, 2008. (Dkt. No. 1 3 .) Because no separate judgment was issued, the judgment is treated as being entered 150 d a ys after entry of the decision. See Fed. R. Civ. P. 58(a) (requiring a separate judgment); F e d . R. App. P. 4(a)(7)(A)(ii) (providing that if no separate judgment is issued, a judgment is entered for purposes of Rule 4(a) when 150 days have run from entry of the order). P la in ti f f timely filed a motion for reconsideration on November 14, 2008. (Dkt. No. 14.) P la in tif f 's motion for reconsideration was denied on September 30, 2009. (Dkt. No. 18.) P la in tif f filed his motion for extension of time to file his notice of appeal on November 25,

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2 0 0 9 . (Dkt. No. 19.) His motion was timely because it was filed within sixty days after the o rd e r denying his motion for reconsideration was entered. See Fed. R. App. P. 4(a)(5)(A)(i) (re q u irin g a motion to extend time to file a notice of appeal to be filed no later than 30 days af ter the time prescribed by Rule 4(a) expires). The Magistrate Judge granted Plaintiff's m o tio n for extension of time to file his notice of appeal, and Plaintiff filed a notice of appeal o n January 26, 2010.1 (Dkt. No. 24.) The Sixth Circuit determined that the Magistrate J u d g e lacked authority to rule on Plaintiff's motion for extension of time because it was a p o s t-ju d g m e n t order. The Sixth Circuit accordingly remanded Plaintiff's motion for

ex tens ion of time to this Court for resolution. (Dkt. No. 26.) A timely motion for extension of time may be granted upon a finding of excusable n e g le c t or good cause. Fed. R. Civ. P. 4(a)(5)(A)(ii). Plaintiff requested an extension of time to file his notice of appeal based upon his assertion that, until he was informed otherwise, he th o u g h t he had 150 days after his motion for reconsideration was denied to file his notice of a p p e a l because a separate judgment had not been issued. Plaintiff has made an adequate s h o w in g of excusable neglect or good cause. Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for extension of time to file his n o tic e of appeal (Dkt. No. 19) is GRANTED.

Although Plaintiff's November 25, 2010, certificate of service indicated that he filed a notice of appeal together with his motion for enlargement of time, the Court docket does n o t reflect receipt of such a notice. (Dkt. No. 20.) 2

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I T IS FURTHER ORDERED that Plaintiff's January 26, 2010 notice of appeal (Dkt. N o . 24) is TIMELY.

Dated: October 15, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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