McMurray v. Stolz et al

Filing 8

ORDER: The Court grants Plaintiff 30 days' leave to show cause by declaration why the Court should not deny his motion for an extension of time to file a notice of appeal under Rule 4(a)(5) of the Federal Rules of Appellate Procedure. A decla ration form is attached to this order. Plaintiff may use that form to comply with this order. If Plaintiff fails to comply with the time allowed, or fails to show good cause, the Court will deny Plaintiff's motion. The Court directs the Court of Court to mail a copy of this order to Plaintiff and note service on the docket. (Signed by Judge Laura Taylor Swain on 11/16/2021) (Attachments: # 1 Declaration) (sac) Transmission to Docket Assistant Clerk for processing.

Case 1:21-cv-07730-LTS Document 8 Filed 11/16/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARCELLUS McMURRAY,
Plaintiff,

1:21-CV-7730 (LTS)

-against-

ORDER

(JUDGE) ROBERT STOLZ, et al.,
Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:

By order and judgment dated October 1, 2021, and entered three days later, the Court
dismissed this pro se action. On November 5, 2021, Plaintiff filed a notice of appeal, as well as a
motion for an extension of time to file a notice of appeal under Rule 4(a)(5) of the Federal Rules
of Appellate Procedure (“Rule 4(a)(5)”). (ECF 6 & 7.) In his motion, Plaintiff states that he is
“not sure[] if this paperwork will get to the court[] in time so [he is] asking for [an] extension if
[he] need[s] the extension and due to Covid-19.” (ECF 6, at 1.) For the reasons discussed below,
the Court directs Plaintiff to show cause by declaration, within 30 days, why the Court should
not deny his motion for an extension of time.
DISCUSSION
A litigant has 30 days from the entry date of the order or judgment he wishes to challenge
to file a notice of appeal. Fed. R. App. P. 4(a)(1)(A). The Court’s October 1, 2021, order and
judgment dismissing this action were entered on October 4, 2021. Thus, Plaintiff had until
November 3, 2021, to file a notice of appeal. Plaintiff did not file his notice of appeal until two
days later, on November 5, 2021. Accordingly, his notice of appeal is untimely.
Under Rule 4(a)(5), however, a litigant may seek an extension of time to file a notice of
appeal. A motion for an extension of time under this rule must be filed within 30 days of the

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expiration of the period to file a notice of appeal, and must also show good cause or excusable
neglect. Fed. R. App. 4(a)(5)(A)(i), (ii). Because Plaintiff has until December 3, 2021, to file a
motion for an extension of time, his motion is timely.
Rule 4(a)(5)’s “‘good cause’ standard . . . applies in situations in which there is no fault –
excusable or otherwise, such as when the Postal Service fails to deliver a notice to appeal.”
Alexander v. Saul, 5 F.4th 139, 147 (2d Cir. 2021), petition for cert. filed, No. 21-6180 (Nov. 4,
2021) (internal quotation marks and citations omitted, italics in original). “Because the ‘good
cause’ standard applies only in situations in which there is no fault, it requires a greater showing
than excusable neglect.” Id. (internal quotation marks and citations omitted). “Courts have
accordingly declined to apply the ‘good cause’ standard in cases in which the movant’s failure to
prosecute a timely appeal was at least partially attributable to the movant’s own inadvertence.”
Id. (footnote omitted). Thus, this standard only applies if a litigant can show that his need for an
extension “arise[s] from a ‘situation[ ] in which there [was] no fault’ or in which []he was ‘not
. . . neglectful at all.’” Id. (citation omitted; second, third, and fourth alterations in original;
italics in original).
Rule 4(a)(5)’ s “excusable neglect standard applies in situations in which there is fault; in
such situations, the need for an extension is usually occasioned by something within the control
of the movant.” Id. (internal quotation marks, citation omitted). For this standard, courts consider
the following four factors: “[1] the danger of prejudice to the [non-movant], [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.” Id. at 148 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’shp., 507
U.S. 380, 395 (1993)) (internal quotation marks omitted, alteration in original). “Because the

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requirement of filing a timely notice of appeal is mandatory and jurisdictional, [the Second
Circuit has] taken a hard line in applying the . . . test for excusable neglect.” Id. (internal
quotation marks and citations omitted). Thus, more often than not, “a party claiming excusable
neglect will, in the ordinary course, lose.” Id.
Plaintiff asserts that “due to Covid-19,” he was unable to file a timely notice of appeal.
(ECF 6, at 1.) He does not allege any facts, however, showing good cause or excusable neglect
for this failure. In light of Plaintiff’s pro se status, the Court grants Plaintiff 30 days’ leave to
show cause by declaration why the Court should not deny his motion for an extension of time
under Rule 4(a)(5).
CONCLUSION
The Court grants Plaintiff 30 days’ leave to show cause by declaration why the Court
should not deny his motion for an extension of time to file a notice of appeal under Rule 4(a)(5)
of the Federal Rules of Appellate Procedure. A declaration form is attached to this order. Plaintiff
may use that form to comply with this order.
If Plaintiff fails to comply with the time allowed, or fails to show good cause, the Court
will deny Plaintiff’s motion.
The Court directs the Court of Court to mail a copy of this order to Plaintiff and note
service on the docket.
SO ORDERED.
Dated:

November 16, 2021
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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