WMCV Phase 3, LLC v. Couture International, Inc. et al

Filing 251

ORDER that 225 Motion to Extend Time to File Appeal is DENIED. The hearing set for June 4, 2014, is VACATED. Signed by Chief Judge Gloria M. Navarro on 5/14/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WMCV Phase 3, LLC,

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Plaintiff,
vs.

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Shushok & McCoy, Inc., et al.,

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Defendants.

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Case No.: 2:10-cv-00661-GMN-NJK
ORDER

Before the Court is WMCV Phase 3, LLC (“WMCV”)’s Motion to Extend Time to File

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Appeal (ECF No. 225), to which Global Accents, Inc. (“Global Accents”), has filed an

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opposition (ECF No. 230), and WMCV has filed a Reply (ECF No. 236).

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I.

BACKGROUND

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On December 27, 2013, the Court entered its Order of judgment after the bench trial

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between WMCV and Global. (ECF No. 209.) Three days later, on December 30, 2013, the

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Clerk of the Court entered Judgment accordingly. (ECF No. 210.)

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On February 5, 2014, WMCV filed its Notice of Appeal (ECF No. 221). On February

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13, 2014, WMCV filed the instant Motion to Extend Time to File Appeal (ECF No. 225) after

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the Ninth Circuit appellate panel indicated that the time to file an appeal had elapsed.

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Specifically, the Ninth Circuit panel stated:

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A review of the record suggests that this court may lack jurisdiction over the
appeal because the notice of appeal was not filed within 30 days after the district
court's judgment entered on December 30, 2013. See 28 U.S.C. § 2107(a); Fed. R.
App. P. 4(a)(1)(A). Within 21 days after the date of this order, appellant shall
move for voluntary dismissal of the appeal or show cause why it should not be
dismissed for lack of jurisdiction. If appellant elects to show cause, a response
may be filed within 10 days after service of the memorandum. If appellant does
not comply with this order, the Clerk shall dismiss this appeal pursuant to Ninth
Circuit Rule 42-1. Briefing is suspended pending further order of the court.

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WMCV Phase 3, LLC v. Global Accents, Inc., No. 14-15223 (Ninth Cir. Feb. 12, 2014). On

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May 12, 2014, the Ninth Circuit panel dismissed the appeal for lack of jurisdiction. WMCV

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Phase 3, LLC v. Global Accents, Inc., No. 14-15223 (Ninth Cir. May 12, 2014).

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II.

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LEGAL STANDARD
The Federal Rules of Appellate Procedure generally require that a notice of appeal be

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filed “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P.

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4(a)(1)(A). Certain types of motions may toll the deadline to file an appeal, as described in

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Rule 4(a)(4), “Effect of a Motion on a Notice of Appeal”:

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(A) 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 remaining motion:
(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.
(B)
(i) If a party files a notice of appeal after the court announces or enters a
judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A)--the
notice becomes effective to appeal a judgment or order, in whole or in part,
when the order disposing of the last such remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion listed in
Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion,
must file a notice of appeal, or an amended notice of appeal--in compliance
with Rule 3(c)--within the time prescribed by this Rule measured from the
entry of the order disposing of the last such remaining motion.
(iii) No additional fee is required to file an amended notice.

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Fed. R. App. P. 4(a)(4). Also, a “district court may extend the time to file a notice of appeal if:

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(a) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires;

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and (ii) regardless of whether its motion is filed before or during the 30 days after the time

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prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.” Fed. R.

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App. P. 4(a)(5).

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III.

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DISCUSSION
Here, WMCV did not file its notice of appeal or move for an extension within 30 days

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after entry of the Judgment entered on December 30, 2013 (ECF No. 210), from which WMCV

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appeals. This alone precludes WMCV from the relief it requests. However, even if its motion

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were timely, the Court finds no excusable neglect or good cause for WMCV’s failure to comply

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with timeliness requirements. WMCV’s error appears to be simple neglect of the plain

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procedural rules.

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Furthermore, although WMCV argues that its deadline to appeal is tolled by Global

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Accents’ Rule 54 motion for attorney’s fees (ECF No. 213), the Court did not extend the time

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to appeal under Rule 58, which provides:
Ordinarily, the entry of judgment may not be delayed, nor the time for appeal
extended, in order to tax costs or award fees. But if a timely motion for attorney’s
fees is made under Rule 54(d)(2), the court may act before a notice of appeal has
been filed and become effective to order that the motion have the same effect
under Federal Rule of Appellate Procedure 4 (a)(4) as a timely motion under Rule
59.

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Fed. R. Civ. P. 58(e). Indeed, the Court did not act so as to extend the time for appeal, and no

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party requested that the Court act to do so before the notice of appeal was filed. Accordingly,

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the Court finds no grounds to do so now. Therefore, finding no support for WMCV’s request

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to extend the time for appeal, the Court cannot grant the motion.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Extend Time to File Appeal (ECF No.

225) is DENIED. The hearing set for June 4, 2014, is VACATED.
DATED this 14th day of May, 2014.

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_____________________________
Gloria M. Navarro, Chief Judge
United States District Court