Mallet v. Johnson

Filing 31

MEMORANDUM OPINION AND ORDER: Accordingly, the Court finds that the plaintiff's filing of the notice of appeal was timely and directs the Clerk to accept it for filing. In directing the Clerk to file the plaintiff's notice of appeal, the Co urt is not extending the time to file the notice of appeal beyond the thirty-day grace period provided by Federal Rule of Appellate Procedure 4(a)(5). Rather, the Court is directing the Pro Se Office to file and docket a notice of appeal that was timely received. (Signed by Judge John G. Koeltl on 6/19/2012) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ANTONIO MALLET,
09 Civ. 8430 (JGK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER

- against ROBERT T. JOHNSON,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiff has inquired about the status of his notice
of appeal from an order of this Court dated July 6, 2011, which
resulted in a Judgment of Dismissal entered July 8, 2011.

The

plaintiff has provided a certified mail receipt indicating that
the notice of appeal was sent to the Pro Se Office of the Court
on July 10, 2011.

The web site www.usps.com indicates that the

plaintiff’s document was delivered to the Court on July 21,
2011, but the Pro Se Office has been unable to locate the notice
of appeal and it has not been docketed.
Federal Rule of Appellate Procedure 4(a)(1) provides, with
certain exceptions, that a litigant seeking to appeal a judgment
or order issued in a civil case must file a notice of appeal
within thirty days after the date of entry of the judgment or
order appealed from.

Fed. R. App. Pro. 4(a)(1).

While the

plaintiff’s notice of appeal was not actually docketed by the
Pro Se Office during this thirty-day time period, it appears

from the www.usps.com website that the notice of appeal was in
fact received by the Court during this time period.
Accordingly, the Court finds that the plaintiff’s filing of the
notice of appeal was timely and directs the Clerk to accept it
for filing.

See, e.g., Payton v. City Univ. of N.Y., No. 03

Civ. 8536, 2007 WL 60515, at *1 (S.D.N.Y. Jan. 8, 2007)
(assuming that notice of appeal was timely filed where it was
marked as received by the Pro Se Office within thirty days after
entry of judgment but not docketed during this time period);
Johnson v. Fleming, No. 95 Civ. 1891, 1997 WL 266978, at *1
(S.D.N.Y. May 19, 1997) (deeming plaintiff’s motion for an
extension of time in which to file a notice of appeal timely
where it was received by the Pro Se Office within the relevant
limitations period but not actually filed within that time
period).
In directing the Clerk to file the plaintiff’s notice of
appeal, the Court is not extending the time to file the notice
of appeal beyond the thirty-day grace period provided by Federal
Rule of Appellate Procedure 4(a)(5).

See Cohen v. Empire Blue

Cross & Blue Shield, 142 F.3d 116, 118 (2d Cir. 1998) (per
curiam) (The Court “lacks [the subject matter] jurisdiction to
grant any extension motion that is not filed within Rule
4(a)(5)’s 30-day ‘grace period.’”).

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Rather, the Court is

directing the Pro Se Office to file and docket a notice of
appeal that was timely received.
SO ORDERED.
Dated:

New York, New York
June/1, 2012
Judge

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