Eiland v. U.S. Department of Education et al

Filing 21

MEMORANDUM OPINION AND ORDER. In conclusion, Eilands April 5, 2011 motion for an extension of time to file a notice of appeal is denied. In addition, the Court declines to issue a certificate of appealability. The Court finds pursuant to 28 U.S.C. & #167;1915(a)(3) that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 5/5/11); Copies Sent By Chambers. (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
TYRELL L. EILAND,
:
Plaintiff,
:
:
-v:
:
U.S. DEPARTMENT OF EDUCATION et al.,
:
:
Defendants.
:
:
----------------------------------------X
Appearances:

10 Civ. 4131 (DLC)
MEMORANDUM OPINION
& ORDER

For Plaintiff:
Tyrrell L. Eiland, pro se
P.O. Box 20406
New York, NY 10023
For Defendants:
Cristine Irvin Phillips
United States Attorney’s Office
Southern District of New York
86 Chambers Street, 3rd Floor
New York, NY 10007
DENISE COTE, District Judge:
The plaintiff Tyrrell L. Eiland (“Eiland”), proceeding pro
se, brought an action against the United States Department of
Education and two of its offices, the Office of the Ombudsman and
the Office of Federal Student Aid (collectively, the “Department
of Education”), for violating his constitutional rights by
erroneously placing his federal student loan in default and by
providing incorrect information to the national credit bureaus.
The Court granted the Department of Education’s motion to dismiss
the complaint on January 4, 2011 (the “January 4 Opinion”).
1

The

January 4 Opinion was filed on January 4, and mailed by chambers
on that same day to Eiland at the address he had provided to the
Court in his motion papers.

The Clerk of Court separately mailed

the notice of right to appeal and a copy of the Judgment to the
same address on January 5.

Neither mailing was returned to the

Court as undeliverable.
On April 5, 2011, Eiland filed a motion for an extension of
time to file a notice of appeal from the January 4 Opinion
pursuant to Federal Rule of Appellate Procedure 4(a)(5).

In his

motion Eiland states that he failed to file the notice of appeal
within the required 60 days because the Court mailed a copy of
the January 4 Opinion to the wrong address; thus, Eiland claims
that he never received notice of the January 4 Opinion.
Eiland’s motion is denied because he failed to serve the
motion on the Department of Education.

“[A] party's failure to

notice opposing counsel of a motion for extension filed after the
expiration of the prescribed time deprives a district court of
its authority to entertain the motion.”

Hamzi v. Minnesota Mut.

Life Ins. Co., 196 F.3d 372, 373 (2d Cir. 1999).

Attached to

Eiland’s motion was an affirmation of service showing that Eiland
had served the Department of Education at the “U.S. Southern
District Court Building” by the “U.S. Marshall.”

Service must be

made on an attorney pursuant to Fed. R. Civ. P. 5(b)(1), however;
Eiland’s method of service was thus improper.

2

Moreover, Eiland has not shown that his failure to file the
notice of appeal within the required 60 days was due to
“excusable neglect or good cause” as required by Fed. R. App. P.
4(a)(5)(A)(ii).

In determining whether there is “good cause” for

the delay in filing an appeal, courts consider “(1) the danger of
prejudice to the non-moving party, (2) the length of the delay
and its potential impact on judicial proceedings, (3) the reason
for the delay, including whether it was within the reasonable
control of the movant, and (4) whether the movant acted in good
faith.”

In re Johns-Manville Corp., 476 F.3d 118, 124 n.6 (2d

Cir. 2007) (citing Pioneer Investment Servs. Co. v. Brunswick
Associates Ltd., 507 U.S. 380, 395 (1993)).
In this case the reason for the delay was entirely within
the control of Eiland, who failed to notify the Court of any
change of address.

While Eiland asserts that his address is now

P.O. Box 20406, New York, New York 10023, he does not indicate
that he ever informed the Clerk of Court of the new address.
Therefore, Eiland has not shown “good cause” for the delay, which
could have been avoided had Eiland promptly notified the Court of
his change of address.
In conclusion, Eiland’s April 5, 2011 motion for an
extension of time to file a notice of appeal is denied.
addition, the Court declines to issue a certificate of
appealability.

The Court finds pursuant to 28 U.S.C. §

3

In

1915(a) (3) that any appeal from this Order would not be taken in
good faith.

Coppedge v. United States, 369 U.S. 438, 445 (1962).

The Clerk of Court shall close the case.

SO ORDERED:
Dated:

New York, New York
May 5, 2011

United

4

Judge

COPIES SENT TO:

Tyrrell L. Eiland
P.O. Box 20406
New York, NY 10023

Cristine Irvin Phillips
Assistant United States Attorney
U.S. Attorney's Office
86 Chambers Street, 3 rd Floor
New York, NY 10007