R.S., et al. v. Board of Education Shenendehowa Central School District et al

Filing 106

DECISION AND ORDERED, that E.S.s Motion to Reopen (Dkt. No. 97) is GRANTED; and it is further ORDERED, that, pursuant to FRAP 4(a)(6), E.S. must file her appeal of the 2019 Memorandum-Decision and Order and the Judgment with the Court within fourteen days of this Decision and Order; and it is further ORDERED, that the Clerk of the Court send notice of this Decision and Order and all future docket entries to E.S. at her address on file with the Court. The Clerk shall serve a copy of this Decision and Order on all other parties in accordance with the Local Rules; and it is further ORDERED, that if E.S. would like to change the way she receives docket notifications in this case then she should promptly so notify the Court in writing. Signed by Senior Judge Lawrence E. Kahn on March 16, 2020. (Copy served via regular mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
A.S., et al.,
Plaintiffs,
-against-

1:17-CV-0501 (LEK/CFH)

BOARD OF EDUCATION
SHENENDEHOWA CENTRAL SCHOOL
DISTRICT, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
Pro se plaintiffs R.S. and E.S. have brought this action individually and on behalf of their

son, A.S., against Shenendehowa Central School District Board of Education (“District”) and
MaryEllen Elia, commissioner of the State University of New York (collectively, “Defendants”).
Dkt. Nos. 1 (“Complaint”); 10 (“First Amended Complaint”); 76 (“Second Amended
Complaint”). On February 20, 2019, the Court granted summary judgment to Defendants on all
of Plaintiffs’ claims and dismissed the action. Dkt. No. 95 (“2019 Memorandum-Decision and
Order”). The Clerk of the Court entered judgment in favor of Defendants and dismissed the case
that same day. Dkt. No. 96 (“Judgment”). The period in which to file a timely appeal expired
thirty days later. On June 20, 2019, E.S. moved the Court to reopen the time to appeal pursuant to
Federal Rule of Appellate Procedure (“FRAP”) 4(a)(6). Dkt. Nos. 97 (“Motion to Reopen”); 97-1
(“E.S.’s Memorandum”); 97-2 (“Pro Se CM/ECF Registration Form”); 104 (“E.S. Declaration”);

105 (“R.S. Declaration”).1 E.S. asserts she did not receive notice of the 2019 MemorandumDecision and Order and the Judgment until June 14, 2019 when she obtained copies of them
from the courthouse. E.S.’s Mem. at 10; E.S. Decl. ¶ 11. And, for his part, R.S. affirms he never
provided E.S. notice or copies of the 2019 Memorandum-Decision and Order and the Judgment
even though he received notice and copies of them. R.S. Decl. ¶¶ 8–9. Defendants oppose E.S.’s
Motion to Reopen. Dkt. Nos. 98 (“Elia Opposition”); 99 (“District Opposition”).
For the reasons that follow, E.S.’s Motion to Reopen is granted.
II.

DISCUSSION
As another Court in this district has observed: “Rule 4(a)(1) of the Federal Rules of

Appellate Procedure provides . . . that a notice of appeal in a civil action must be filed with the
district court clerk within 30 days ‘after entry of the judgment or order appealed from.’”
Dickinson v. New York State Comm’n of Correction, No. 16-CV-898, 2017 WL 2493446, at *1
(N.D.N.Y. June 9, 2017) (quoting Fed. R. App. P. 4(a)(1)). FRAP 4(a)(6), which provides an
exception to this requirement, states:
The district court may reopen the time to file an appeal for a period
of 14 days after the date when its order to reopen is entered, but only
if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice
under Federal Rule of Civil Procedure 77(d) of the entry of the
judgment or order sought to be appealed within 21 days after
entry;
(B) the motion is filed within 180 days after the judgment or order
is entered or within 14 days after the moving party receives notice
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While R.S. also signed E.S.’s Memorandum, the Court construes the brief to pertain
only to E.S. since, as described in more detail below, R.S.—rather than E.S.—received timely
notice of the 2019 Memorandum-Decision and Order.
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under Federal Rule of Civil Procedure 77(d) of the entry,
whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6)(A)–(C).
Defendants claim E.S. received timely notice of the 2019 Memorandum-Decision and
Order and the Judgment when the Clerk of the Court emailed those items to
“[e-mail].” Elia Opp’n at 1; District Opp’n at 1. This is an email
address R.S. created on May 31, 2017 to receive CM/ECF2 notifications pertaining to this action.
See Pro Se CM/ECF Registration Form. E.S. does not dispute that the Clerk of the Court emailed
notice of the 2019 Memorandum-Decision and Order and the Judgment to
[e-mail] once they were docketed. Rather, E.S. attests she did not
have access to the [e-mail] account and so did not receive notice of
those docket entries. E.S. Decl. ¶ 5. She also affirms that, unlike R.S., she never consented to
receiving electronic notifications from the Court. See id. ¶¶ 3–4, 6–9.
To determine whether E.S. did receive timely notice of the 2019 Memorandum-Decision
and Order and the Judgment, the Court must first determine whether she received notice in
accordance with Federal Rule of Civil Procedure (“FRCP”) 77(d). FRCP 77(d) provides in
pertinent part that “immediately after entering an order or judgment, the clerk must serve notice
of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear.”
Fed. R. Civ. P. 77(d)(1). FRCP 5(b) in turn states that a paper may be served by “sending it to a
registered user by filing it with the court’s electronic-filing system or sending it by other

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CM/ECF refers to the Court’s electronic filing system.
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electronic means that the person consented to in writing.” Fed. R. Civ. P 5(b)(2)(E). Because E.S.
never registered for CM/ECF, never consented to receiving court filings through other electronic
means, and did not receive notice of the 2019 Memorandum-Decision and Order and the
Judgment until nearly four months after they were issued, E.S. did not receive timely notice of
those items for the purposes of FRAP 4(a)(6)(A).
The District argues that the Court should presume E.S. received notice of the 2019
Memorandum-Decision and Order and the Judgment because “[p]apers filed on behalf of
Plaintiffs throughout and in connection with this action have been filed by the two parents, as
joint plaintiffs on behalf of their infant child” through [e-mail].
District Opp’n at 2. But even if one could infer from E.S. and R.S.s’ joint filings that E.S. should
have received timely notice of the 2019 Memorandum-Decision and Order and the Judgment,
“this presumption of receipt can be rebutted by a ‘specific factual denial of receipt.’” See Bourgal
v. Robco Contracting Enters., Ltd., 17 F. Supp. 2d 129, 132 (E.D.N.Y. 1998) (quoting Nunley v.
City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 1995)). Here, E.S. has rebutted the presumption
that she received notice of the 2019 Memorandum-Decision and Order by attesting to the fact
that she did not have access to the [e-mail] account. Consequently,
the Court still finds E.S. has satisfied the first prong of the FRAP 4(a)(6) analysis.
Regarding FRAP 4(a)(6)(B), E.S. filed her Motion to Reopen on June 20, 2019, which
was within fourteen days of receiving notice of the 2019 Memorandum-Decision and Order and
the Judgment. Mot. to Reopen. E.S. also filed her Motion to Reopen within one-hundred-andeighty days after the 2019 Memorandum-Decision and Order and the Judgment were entered. Id.
Thus, E.S. has satisfied the second prong of FRAP 4(a)(6).
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As for FRAP 4(a)(6)(C), the District argues it “would be prejudiced in this matter, having
to spend the time and expense of continuing to litigate this matter.” District Opp’n at 2. Yet when
“there is no prejudice [to a party] beyond the normal risks and costs of opposing an appeal,”
FRAP 4(a)(6)(C) is satisfied. King v. Fox, No. 97-CV-4134, 2000 WL 1876904, at *2 (S.D.N.Y.
Dec. 22, 2000) (“By ‘prejudice’ the Committee means some adverse consequence other than the
cost of having to oppose the appeal and encounter the risk of reversal, consequences that are
present in every appeal.” (quoting 1991 Note of the Advisory Committee on Appellate Rules)).
Hence, the Court finds E.S. has satisfied the third prong of the FRAP 4(a)(6) analysis since
Defendants have not identified any prejudice they may suffer beyond the usual risks and costs of
opposing E.S.’s appeal.
The Second Circuit has observed that a district court may still deny relief under FRAP
4(a)(6) “even if the requirements [of the rule] are met.” Zavalidroga v. Cuomo, 588 F. App’x 61,
62 (2d Cir. 2014) (internal quotation marks omitted). Elia argues that even if E.S. satisfied the
three requirements of FRAP 4(a)(6), the Court should still deny E.S.’s Motion to Reopen because
“the fault of E.S in not receiving notice of the Decision and Judgment in this case lies with her
and with her husband . . . . Plaintiffs make no attempt whatsoever to explain why R.S. did not tell
E.S. about the Court’s Decision and Judgment.” Elia Opp’n at 1–2 (citing WorldCom, Inc., 708
F.3d at 336). While WorldCom did hold that “at a minimum, a district court exercising discretion
under Rule 4(a)(6) should give substantial weight to indications that the failure of receipt was the
litigant’s fault,” 708 F.3d at 338, the case is not applicable to the facts of this case. In
WorldCom, the attorney for the party moving under FRAP 4(a)(6) had failed to update his
contact information. 708 F.3d at 340. The court held that party’s “failure to receive Civil Rule
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77(d) notice was entirely and indefensibly a problem of its counsel’s making, and Rule 4(a)(6)
was not designed to reward such negligence.” Id. at 340. Unlike the attorney in WorldCom,
however, E.S. is a pro se, rather than professional, litigant. While E.S. should have updated her
contact information with the Court so that she could receive timely notice of docket entries, her
transgression does not warrant denial of her Motion to Reopen. See Marks v. Askew, No.
11-CV-3851, 2013 WL 772657, at *2 (N.D. Cal. Feb. 28, 2013) (concluding that a pro se
plaintiff’s failure to update her address per the court’s local rules is “an insufficient basis” to
deny the plaintiff’s FRAP 4(a)(6) motion); see also LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d
206, 209 (2d Cir. 2001) (“[P]ro se plaintiffs should be granted special leniency regarding
procedural matters.”) Furthermore, Elia does not cite to any case law or rule indicating R.S. was
required to tell E.S. about the 2019 Memorandum-Decision and Order and the Judgment.
Therefore, the Court does not find Elia has adequately explained why E.S. and R.S. were at fault
for E.S. not receiving notice of the 2019 Memorandum-Decision and Order and the Judgment.
III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that E.S.’s Motion to Reopen (Dkt. No. 97) is GRANTED; and it is further
ORDERED, that, pursuant to FRAP 4(a)(6), E.S. must file her appeal of the 2019

Memorandum-Decision and Order and the Judgment with the Court within fourteen days of this
Decision and Order; and it is further
ORDERED, that the Clerk of the Court send notice of this Decision and Order and all
future docket entries to E.S. at her address on file with the Court. The Clerk shall serve a copy of
this Decision and Order on all other parties in accordance with the Local Rules; and it is further
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ORDERED, that if E.S. would like to change the way she receives docket notifications in
this case then she should promptly so notify the Court in writing.
IT IS SO ORDERED.

DATED:

March 16, 2020
Albany, New York

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