Swift v. Cohart et al

Filing 27

ORDER - The plaintiff's "notice of appeal" (filing 24 ), construed as an objection to the Magistrate Judge's order of March 9, 2015, is overruled. The plaintiff's motion to proceed in forma pauperis (filing 25 ) is denied as moot. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT,
Plaintiff,

8:14-CV-243

vs.
ORDER
RICHARD KYLER,
Defendant.
The plaintiff, Charles Swift, has filed a "notice of appeal" (filing 24) and
a motion to proceed in forma pauperis (filing 25). The "notice of appeal"
purports to relate to the March 9, 2015, order of the Magistrate Judge
granting the defendant's motion to extend the time to serve a responsive
pleading. See filings 20 and 24.
The initial question the Court must address is whether the plaintiff is
appealing to the District Judge or to the Eighth Circuit Court of Appeals. The
"notice of appeal" does not say, and the plaintiff's motion to proceed in forma
pauperis is an AO 240 form, an "Application to Proceed in District Court
Without Prepaying Fees or Costs." See filing 25 (emphasis supplied). The
Court will construe the plaintiff's filing as an objection to the Magistrate
Judge's order, to be decided by the District Court, because that is the correct
procedure for appealing such an order.
A pretrial matter that does not dispose of a case may be decided by the
Magistrate Judge, and a party who wants to challenge such a ruling must
serve and file an objection that will be decided by the District Judge. See, 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a); NECivR 72.1 and 72.2(a). And a
Magistrate Judge's ruling on a nondispositive pretrial matter may not be
challenged in the Court of Appeals unless a timely appeal was filed before the
District Court. See St. Jude Med. S.C., Inc. v. Tormey, No. 14-1619, 2015 WL
1036016, at *7 (8th Cir. Mar. 11, 2015). Furthermore, the order the plaintiff
is attempting to appeal from clearly cannot be appealed to the Court of
Appeals before a final judgment in this case. See, 28 U.S.C. § 1291 (Courts of
Appeals shall have jurisdiction of appeals from "final decisions" of district
courts); Great Rivers Co-op. of Se. Iowa v. Farmland Indus., Inc., 198 F.3d
685, 687-88 (8th Cir. 1999) (pretrial order cannot be appealed unless it
includes the grant or denial of an injunction, or the district court has certified
a controlling issue of law, or the court has directed entry of a partial final

judgment under Fed. R. Civ. P. 54(b), or the interlocutory order is appealable
under the collateral order doctrine).
Accordingly, because the plaintiff's filing was unclear, the Court will
assume that the plaintiff intended to follow the correct procedure. The Court
will consider the plaintiff's "notice of appeal" as a timely objection to the
Magistrate Judge's nondispositive pretrial order.
The Magistrate Judge's order permitted the defendant an extension of
time to file an answer, based on the defendant's explanation that an
administrative error caused his answer to be late. See filing 18. The
applicable rule is that when an act may or must be done within a specified
time, the Court may extend the time on motion made after the time is expired
if the party failed to act because of excusable neglect. Fed. R. Civ. P.
6(b)(1)(B). Excusable neglect is understood to encompass situations in which
the failure to comply with a filing deadline is attributable to negligence.
Jefferson v. Hicks, 364 F. App'x 281, 283 (8th Cir. 2010). The factors to be
considered include the danger of prejudice to the plaintiff, 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.
Here, there is no showing that the plaintiff's case has been prejudiced
by the delay, which was minimal, and the cause of the delay was simple
negligence, not bad faith. See Union Pac. R.R. Co. v. Progress Rail Servs.
Corp., 256 F.3d 781, 782-83 (8th Cir. 2001) (simple record-keeping error may
be excusable neglect for an untimely response where party acted promptly to
remedy error and plaintiff's ability to advance claim was not undermined).
The defendant's answer has already been filed. Filing 21. And a district court
may reconsider a magistrate judge's ruling on nondispositive pretrial matters
only where it has been shown that the ruling is clearly erroneous or contrary
to law. See, § 636(b)(1)(A); Ferguson v. U.S., 484 F.3d 1068 (8th Cir. 2007).
The Magistrate Judge's ruling was neither clearly erroneous nor contrary to
law, and accordingly the plaintiff's objection will be overruled.
An objection to a Magistrate Judge's ruling does not require the
payment of a separate fee. Therefore, the plaintiff does not need leave to
proceed in forma pauperis at this time, and his motion to proceed in forma
pauperis is moot.
IT IS ORDERED:
1.

The plaintiff's "notice of appeal" (filing 24), construed as an
objection to the Magistrate Judge's order of March 9, 2015,
is overruled.

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2.

The plaintiff's motion to proceed in forma pauperis (filing
25) is denied as moot.

Dated this 17th day of March, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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