SERFESS v. EQUIFAX CREDIT INFORMATION SERVICES, LLC et al
OPINION. Signed by Judge Robert B. Kugler on 11/4/2016. (TH, )
NOT FOR PUBLICATION
(Doc. No. 122)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
INFORMATION SERVICES, et al.,
Case No. 13-406 (RBK/JS)
KUGLER, United States District Judge:
This matter comes before the Court upon Plaintiff Joseph Serfess’s Motion to Extend the
Time to File A Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A). For
the following reasons, Plaintiff’s Motion is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On August 24, 2016, the Court entered an Order granting summary judgment on
Defendant Bank of America, National Association’s (“BANA”) Motion for Summary Judgment
and denying Plaintiff’s Motion to Strike (“Order”) (Doc. Nos. 117, 118). Plaintiff filed a Notice
of Appeal to appeal the Order on September 26, 2016 (Doc. No. 120). On October 3, 2016, the
United States Court of Appeals, Third Circuit, sent Plaintiff a letter stating that Third Circuit
may lack jurisdiction over the appeal because the notice was not filed within 30 days following
the Order, as required by Federal Rule of Appellate Procedure 4(a)(1)(A). Plaintiff then filed the
present Motion to Extend the Time to File A Notice of Appeal on October 17, 2016 (Doc. No.
122). BANA filed an Opposition on November 2, 2016 (Doc. No. 124).
In a civil case, notice of appeal must be filed “within thirty days after the entry of such
judgment, order, or decree.” 28 U.S.C. § 2107(a); see also Fed. R. App. P. 4(a)(1)(A). The
Court’s Order was entered on August 24, 2016. Under the computing rules of Federal Rule of
Appellate Procedure 26(a)(1), Plaintiff had until September 23, 2016 to file a timely notice of
appeal. He failed to do so. If a party moves to extend the time to file a notice of appeal “no later
than 30 days after the time prescribed in Rule 4(a) expires[,]” the court may grant an extension
upon that party’s showing of “excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A).
Here, Plaintiff had until October 24, 2016 to file a motion to extend the time to appeal. Plaintiff
filed the motion for an extension on October 17, 2016, which falls within the time required by
Federal Rule of Appellate Procedure 4(a)(5)(A).
The good cause standard applies “in situations in which there is no fault—excusable or
otherwise.” Fed. R. App. P. 4(a)(5)(A)(ii), Committee Notes on Rules—2002 Amendment. A
movant must demonstrate that he could not control the reason for delay. See Joseph v. Hess Oil
Virgin Island Corp., 651 F.3d 348, 356 (3d Cir. 2011). Plaintiff attempts to show good cause by
arguing that the filing of his notice of appeal was delayed because the Clerk’s Office was closed
over the September 24, 2016 weekend. However, the 30 day window had expired the preceding
Friday, September 23, 2016, and Plaintiff mailed his appeal on Saturday, September 24, 2016.
Thus, the reason for the delay was Plaintiff’s mistake in calculating the 30 day window, not an
outside factor beyond his control. Plaintiff thus cannot to show good cause and must demonstrate
excusable neglect to qualify for an extension of time under Rule 4(a)(5)(A).
To determine whether a party’s neglect is “excusable,” a court must “tak[e] account of all
relevant circumstances surrounding the party’s omission” and make an equitable determination.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). A court
should grant an extension only in “limited and exceptional” circumstances because of “[t]he
interest in finality and desire to avoid needless delay that underlie our rules and procedures.”
Joseph, 651 F.3d at 355. A court must consider factors such as “the danger of prejudice to the
[non-moving party], the length of 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.” Pioneer Inv. Servs. Co., 507 U.S. at 395. Although “no
one factor is dispositive,” Kanoff v. Better Life Renting Corp., 350 Fed. Appx. 655, 657 (3d Cir.
2009), “the reason-for-delay factor will always be critical to the inquiry.” Lowry v. McDonnell
Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000).
Plaintiff filed this Motion on October 17, 2016, 24 days after the time prescribed by Rule
4(a)(1)(A) expired.1 Because the movant is required to make a Rule 4(a)(5)(A) motion no more
than 30 days after the original time to appeal has lapsed, “the prejudice to the non-movant will
often be negligible” and “delay always will be minimal in actual if not relative terms.” Lowry,
211 F.3d at 463. Here, BANA does not specifically allege it has been prejudiced by the delay.
See Def.’s Opp’n Br. Although 24 days is not negligible in comparison to the 30 day time frame,
the delay does not appear to have interfered with judicial proceedings. In addition, the Court
does not question Plaintiff’s good faith.
The Third Circuit has held that the date of the motion to extend the time to file a notice of
appeal, not the date of a notice of appeal, is the relevant date for purposes of Federal Rule of
Appellate Procedure 4(a)(5)(A). Herman v. Guardian Life Ins. Co. of Am., 762 F.2d 288, 290 (3d
The remaining factor, reason for the delay, is the most important. Id. at 463. A court may
find excusable neglect if the movant’s omission is the “result of things such as
misrepresentations by judicial officers, lost mail, and plausible misinterpretations of ambiguous
rules.” McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008). Although excusable delay is an
“elastic concept,” “inadvertence, ignorance of the rules, or mistakes construing the rules” usually
do not suffice. Pioneer Inv. Servs. Co., 507 U.S. at 392 (citations omitted). In the instant case,
Plaintiff failed to timely file a notice of appeal because he miscalculated the 30 days under
Federal Rule of Appellate Procedure 26(a). As the Supreme Court has recognized, mistakes in
construing the rules usually do not suffice to show excusable neglect.
Plaintiff notes that he is a pro se litigant who has a busy job and is unfamiliar with the
courts’ procedural rules. It is well-accepted that the court liberally construes pro se pleadings.
Higgs v. Atty. Gen. of the United States, 655 F.3d 333, 339 (3d Cir. 2011). Courts have also
relaxed procedural rules for incarcerated litigants. McNeil v. United States, 508 U.S. 106, 113
(1993). However, the Supreme Court has cautioned that it has “never suggested that procedural
rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who
proceed without counsel.” Id. Other courts in this Circuit have granted motions extending time to
appeal brought by pro se litigants, but in those cases the plaintiff had previously expressed
confusion about the deadline in light of another pending appeal, claimed difficulty accessing
court documents, or averred he had received incorrect guidance that led him to file the appeal
with the New Jersey Supreme Court. See Gilmore v. Macy’s Retail Holdings, No. Civ. 06-3020
(JBS/AMD), 2009 WL 2488194, at *2 (D.N.J. Aug. 11, 2009); Parikh v. United Parcel Serv.,
Inc., No. Civ. 09-1652 (DMC)(JAD), 2012 WL 1134912, at *2 (D.N.J. Apr. 3, 2012). Here,
Plaintiff is not incarcerated, did not confront a complex procedural posture, does not allege
difficulty accessing court documents, and does not show other attempts to properly file the
appeal. The only reason he proffers for the delay is a demanding job and mistake in reading the
federal rules. Even if a misreading is viewed leniently in light of Plaintiff’s pro se status, he
nonetheless had 30 days to draft a short document, one that did not include a brief, and submit it
for filing. Absent evidence of attempts by Plaintiff to try to file the appeal within the 30 day time
limit, the Court will not find excusable neglect. Plaintiff has failed to show good cause or
excusable neglect, and the Motion is DENIED.
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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