Criminal Productions, Inc. v. Does

Filing 67

ORDER that 64 Motion for Extension of Time to File Notice of Appeal is GRANTED. Signed by Judge James C. Mahan on 5/24/2018. (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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***

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CRIMINAL PRODUCTIONS, INC.,

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Case No. 2:16-CV-2704 JCM (PAL)
Plaintiff(s),

ORDER

v.
MARIA JENKINS, et al.,
Defendant(s).

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Presently before the court is plaintiff Criminal Productions, Inc.’s motion for an extension
of time to file a notice of appeal. (ECF No. 64).

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Generally, a notice of appeal in a civil case must be filed within 30 days of an entry of

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judgment or appealable order. Fed. R. App. P. 4(a). Pursuant to Federal Rule of Appellate

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Procedure 4, a “district court may extend the time to file a notice of appeal if: (i) a party so moves

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no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) . . . the party shows

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excusable neglect or good cause. Fed. R. App. P. 4(a)(5). The Ninth Circuit has previously held

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that docketing errors based on a misreading of Federal Rule of Appellate Procedure 4 can

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constitute excusable neglect in the context of filing a late notice of appeal. See Pincay v Andrews,

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389 F.3d 853, 855, 859-60 (9th Cir. 2004) (en banc) (“The federal rule is a . . . flexible one that

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permits a narrow 30-day window for requesting an extension, and the trial court has wide discretion

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as to whether to excuse this lapse.”).

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Two weeks after this court entered judgment in this case, plaintiff obtained new counsel to

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represent it on appeal. Plaintiff’s counsel intended to file a motion to vacate based on Federal Rule

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of Civil Procedure 59(e) and Rule 60(b), which counsel anticipated would toll the deadline for

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filing a notice of appeal. (ECF No. 64). The deadline for filing a motion based on Rule 59(e) is

James C. Mahan
U.S. District Judge

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28 days after judgment. However, due to a delay in obtaining plaintiff’s file and a scheduling

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error, counsel was unable to file the motion until thirty days after the entry of judgment. Id.

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Unfortunately, plaintiff’s motion referenced both Rule 59(e) and Rule 60(b), which necessitated

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submission of a corrected motion the following day based solely on Rule 60(b). Id. Therefore,

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because plaintiff did not file his motion to vacate within thirty days of judgment, the motion did

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not toll the deadline for filing a notice of appeal. Id.

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The deadline to file a notice of appeal was May 17, 2018. Plaintiff filed a notice of appeal
one day late, on May 18, 2018.

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After reviewing plaintiff’s motion and the record in this case, the court holds that plaintiff

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has demonstrated excusable neglect and the interests of justice favor granting plaintiff’s motion.

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See Pincay, 389 F.3d at 859-60. The timing of the notice (a day late) and the prompt filing of this

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motion demonstrate that counsel has made a diligent effort to correct an excusable mistake that

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will not prejudice defendants. As plaintiff has already filed its notice of appeal, the court will grant

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the motion nunc pro tunc.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motion for

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extension of time to file a notice of appeal (ECF No. 64) be, and the same hereby is, GRANTED.

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DATED May 24, 2018.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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