Clark et al v. Chevvront et al
MEMORANDUM AND ORDER regarding Notice of Appeal to USCA 13 filed by Kenneth W. Clark. Plaintiff shall have until September 1, 2013, to submit an affidavit to show excusable neglect or good cause for failing to file a timely notice of appeal. If Pl aintiff fails to submit such an affidavit by September 1, 2013, Plaintiff's appeal will not be processed. ***Pro Se Case Management Deadline set for 9/3/2013: Check for affidavit. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH W. CLARK,
JEFFRE CHEVVRONT, et al.,
This matter is before the court on its own motion. On June 11, 2013, the court
dismissed Plaintiff’s Complaint without prejudice. (Filing Nos. 7 and 8.) On June
17, 2013, Plaintiff filed a Motion to Appoint Counsel. (Filing No. 9.) Although this
motion only discussed the appointment of counsel, it contained the following
language in the caption: “motion for to set a side [sic] avoid [sic] judgment.” (Id.)
The court denied Plaintiff’s Motion to Appoint Counsel on June 25, 2013. (Filing
No. 11.) On July 30, 2013, Plaintiff filed a Notice of Appeal. (Filing No. 13.)
Federal Rule of Appellate Procedure 4(a)(1) requires that the notice of appeal
in a civil case be filed within thirty days after the judgment or order appealed from
is entered. “A timely notice of appeal is both mandatory and jurisdictional.” Burgs
v. Johnson Cnty., Iowa, 79 F.3d 701, 702 (8th Cir. 1996). Morever, an untimely
notice of appeal cannot serve as a motion for extension of time to file appeal. Id.
However, the district court may extend the time to file a notice of appeal if a party
moves for an extension of time and shows excusable neglect or good cause. Fed. R.
App. P. 4(a)(5)(A)(ii).
The filing of certain motions tolls the running of the 30-day time period set
forth in Fed. R. App. P. 4. Indeed, Fed. R. App. P. 4(a)(4)(A) provides:
If a party timely files in the district court any of the following motions
under the Federal Rules of Civil Procedure, the time to file an appeal
runs for all parties from the entry of the order disposing of the last such
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule
52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54 if the district court extends
the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 28
days after the judgment is entered.
Fed. R. App. 4(A)(4).
Liberally construed, Plaintiff may have considered his Motion to Appoint
Counsel, which contained the language “motion for to set a side [sic] avoid [sic]
judgment,” a motion for relief under Rule 59 or 60. (See Filing No. 9.) Giving
Plaintiff the benefit of this liberal construction, the court denied his motion on June
25, 2013, thereby triggering the 30-day deadline set forth in Fed. R. App. P. 4.
Plaintiff filed his Notice of Appeal on July 30, 2013, or more than 30 days after
the court’s June 25, 2013, Memorandum and Order. (See Docket Sheet.) Moreover,
Plaintiff did not move to extend the time to file a notice of appeal in this matter. (Id.)
However, on the court’s own motion, Plaintiff shall have until September 1, 2013, to
file an affidavit to show excusable neglect or good cause for failing to file a timely
notice of appeal. If Plaintiff fails to submit such an affidavit, Plaintiff’s appeal will
not be processed.
IT IS THEREFORE ORDERED that:
Plaintiff shall have until September 1, 2013, to submit an affidavit to
show excusable neglect or good cause for failing to file a timely notice of appeal. If
Plaintiff fails to submit such an affidavit by September 1, 2013, Plaintiff’s appeal will
not be processed.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for affidavit on September 1,
DATED this 5th day of August, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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