AYALA v. MCCORMICK et al
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 6/29/2015. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KENNETH McCORMICK, et al.,
CIVIL ACTION NO. 09-3484 (MLC)
THE COURT issued an order and judgment on March 31, 2014 (“March 2014
Judgment”), inter alia: (1) granting the motion for summary judgment by the defendants
remaining in the action at that juncture (“Defendants”); (2) entering judgment in favor of
the Defendants; and (3) closing the action. (See dkt. 94; see also dkt. 93, 3-31-14 Mem.
Op. at 1–24.)
THE PLAINTIFF, who is a prisoner and apparently now proceeding pro se, filed
a motion (“Motion”) in December 2014 to reopen the time for appeal from the March
2014 Judgment. (See dkt. 97.) See 28 U.S.C. § 2107(c); Fed.R.App.P. 4(a)(6).1 The
plaintiff argues that: (1) pro bono counsel — who had been assigned to represent him —
was notified of the entry of the March 2014 Judgment, but then failed to notify the
The plaintiff dated the Motion on December 6, 2014. (See dkt. 97 at 2; dkt. 97-1 at
1–2; dkt. 97-2 at 1–2.) The Motion was mailed on December 9, 2014. (See dkt. 97-5.) The
Motion was docketed on December 11, 2014. (See generally dkt. 97.)
plaintiff of its entry; (2) he was first advised about the March 2014 Judgment on November
25, 2014, when the Magistrate Judge answered a letter written by the plaintiff himself on
November 13, 2014; and (3) he would have appealed in a timely manner had he been
properly informed about the March 2014 Judgment. (See dkt. 97-3 at 2–8; see also dkt.
95, Magistrate Judge Letter dated 11-25-14.) The Defendants opposed the Motion. (See
THE COURT, upon a review of the papers filed in support of and in opposition to
the Motion, will deny the Motion. See L.Civ.R. 78.1(b) (stating district court may
determine that a motion “will be decided on the papers submitted”).
THERE WAS “a clear 180-day outer limit” for the plaintiff to file the Motion.
Baker v. United States, 670 F.3d 448, 460 (3d Cir. 2012); see 28 U.S.C. § 2107(c); see
also Fed.R.App.P. 4(a)(6)(B). The plaintiff’s time to move to reopen the time for appeal
from the March 2014 Judgment elapsed on September 29, 2014.
THAT TIME LIMIT is “jurisdictional in nature” and a “jurisdictional
requirement”. Bowles v. Russell, 551 U.S. 205, 206, 214 (2007); see Baker, 670 F.3d at
456 (stating “there is no doubt after Bowles that those rules listed in 28 U.S.C. § 2107,
which are also embodied in [Federal Rules of Appellate Procedure] 4(a)(1) and 4(a)(6),
are jurisdictional, and are not subject to equitable modification”).
THIS COURT “cannot extend the 180-day outer limit”. Baker, 670 F.3d at 456
(citing: (a) 2005 Advisory Committee Notes to Federal Rule of Appellate Procedure
4(a)(6) stating appeal cannot be brought more than 180 days after entry, no matter what
the circumstances; (b) 1991 Advisory Committee Notes to same rule explaining it
establishes outer time limit of 180 days for party failing to receive timely notice of entry
of judgment to seek more time to appeal; and (c) Bowles).
FOR GOOD CAUSE APPEARING, the Court will issue an appropriate order
denying the Motion.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: June 29, 2015
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