Miller v. Missouri Department of Social Services/Division of Youth Services

Filing 86

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to File a Notice of Appeal out of Time is DENIED. [Doc. 84.] 84 Signed by Magistrate Judge Nannette A. Baker on 11/10/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARVA LYNNETTE MILLER,
Plaintiff,
v.
MISSOURI DEPARTMENT OF SOCIAL
SERVICES DIVISION OF YOUTH SERVICES,
et al.,
Defendants.

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Case No. 4:13-CV-1102 NAB

MEMORANDUM AND ORDER 1
This matter is before the Court on Plaintiff’s Motion to File a Notice of Appeal Out of
Time. [Doc. 84.] Judgment was entered against Plaintiff on October 6, 2015. One day after the
deadline for filing a notice of appeal, Plaintiff filed a notice of appeal and motion requesting
leave to file her notice of appeal out of time.
Under Federal Rule of Appellate Procedure 4(a)(5), the district court may extend the time
to file a notice of appeal if two conditions are met. Fed. R. App. P. 4(a)(5). First, the party must
move no later than thirty days after the time prescribed by Rule 4(a) expires. Id. Plaintiff has
met this condition, because she filed her motion within thirty days of the expiration of the date to
file the notice of appeal.
Second, the party must show excusable neglect or good cause. Id. Plaintiff has not met
this condition. The good cause standard applies where there is no fault- excusable or otherwiseand the need for extension is usually occasioned by something that is not within the control of
the movant. Fed. R. App. P. 4(a)(5) advisory committee’s notes to 2002 amendment. “The
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The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c).

excusable neglect standard applies in situations in which there is fault; in such situations, the
need for an extension in usually occasioned by something within the control of the movant. Id.
With regard to whether a party’s neglect of a deadline is excusable, the Supreme Court has held
that the determination is at bottom an equitable one, taking account of all relevant circumstances
surrounding the party’s omission.” Gibbons v. U.S., 317 F.3d 852, 854 (8th Cir. 2003) (citing
Pioneer Inv. Serv. Co., v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993)). “These
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.” Id. These factors do not
carry equal weight and the excuse given for the late filing must have the greatest import. Lowry
v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000). “While prejudice, length of
delay, and good faith might have more relevance in a closer case, the reason for delay factor will
always be critical to the inquiry.” Id.
In her motion, Plaintiff states that she filed her motion late “due to acute and chronic
medical conditions that have continually interfered in my ability to function and present in a
timely manner.” While there are cases where serious illness might merit relief under Rule
4(a)(5), this is not such a case. See e.g. Islamic Republic of Iran v. Boeing Co., 739 F.2d 464,
465 (9th Cir. 1984) (attorney’s illness was of such a character and magnitude that counsel was
both physically and mentally incapacitated during the crucial period of time). Plaintiff’s motion
provides no specific information regarding the nature of her illness, its length, treatment, and/or
rehabilitation. See Gibbons, 317 F.3d at 855 (affirms district court denial of relief under Rule
4(a)(5) where attorney stated that extended vacation and serious illness prevented timely filing of
notice of appeal). Based on the sparse information provided in Plaintiff’s motion, the Court is

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unable to make a finding of good cause or excusable neglect. The court recognizes that Plaintiff
is pro se, but “even pro se litigants must comply with court rules and directives.” Soliman v.
Johanns, 412 F.3d 920, 922 (8th Cir. 2005). Therefore, Plaintiff’s motion will be denied.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File a Notice of Appeal
out of Time is DENIED. [Doc. 84.]
Dated this 10th day of November, 2015.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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