Rodrigues v. American Security Insurance Company et al

Filing 53

DECISION AND ORDER denying as untimely 50 Motion for Extension of Time to File; finding as moot 51 Motion for Leave to Appeal in forma pauperis. Signed by Hon. Michael A. Telesca on 8/2/19. (Copy of Decision and Order sent by first class mail to Plaintiff.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
ELDER TOLEDO RODRIGUES,

Plaintiff,

1:17-CV-00337 MAT
DECISION AND ORDER

v.
AMERICAN SECURITY INSURANCE COMPANY,
ET AL.,

Defendants.
________________________________________
BACKGROUND
Pro se Plaintiff Elder Toledo Rodrigues filed this action in
New

York

defendants

State

Supreme

American

Court

Security

on

February

Insurance

Servicing LLC, and Ditech Financial LLC.

22,

2017,

Company,

against

Green

Tree

Docket No. 1 at ¶ 5.

On April 20, 2017, defendant American Security Insurance Company
filed a Notice of Removal, seeking removal of the case to the
United

States

New York.

District

Docket No. 1.

Court

for

the

Western

District

of

Defendants thereafter filed motions to

dismiss Plaintiff’s amended complaint.

Docket Nos. 38, 39.

On

May 21, 2019, the Court granted Defendants’ motions to dismiss,
and

dismissed

Plaintiff’s

Docket No. 48.
on May 22, 2019.

amended

complaint

with

prejudice.

The Judgment in favor of Defendants was entered
Docket No. 49.

Copies of the Court’s Decision

and Order and the Judgment were mailed to Plaintiff.

Id.

Thereafter, on July 26, 2019, Plaintiff filed a motion for
an extension of time to file a Notice of Appeal, as well as a
motion for leave to appeal in forma pauperis.
51.

Docket Nos. 50,

In his motion for an extension of time to file a Notice of

Appeal, Plaintiff states that he “appeared at the Clerk’s office
for assistance within the allotted time for appeal, but the help
desk was closed.”

Docket No. 50 at 1.

Plaintiff further states

that his “appeal has substantial merit,” and “[p]er docket entry
46 the case is subject to an automatic bankruptcy stay.”
Plaintiff also filed a Notice of Appeal on the same date.

Id.

Docket

No. 52.
For
extension

the
of

following
time

to

reasons,

file

a

Plaintiff’s

Notice

of

motion

Appeal

is

for

an

denied

as

untimely, and his motion for leave to appeal in forma pauperis is
denied as moot.
ANALYSIS
Plaintiff’s motion for an extension of time to file a Notice
of Appeal is governed by Rule 4 of the Federal Rules of Appellate
Procedure.

According to Rule 4(a)(5):

(5) Motion for Extension of Time.
(A) The district court may extend the time to file a
notice of appeal if:
(i) a party so moves no later than 30 days after the
time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before
or during the 30 days after the time prescribed by this
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Rule 4(a) expires, that party shows excusable neglect
or good cause.
(B) A motion filed before the expiration of the time
prescribed in Rule 4(a)(1) or (3) may be ex parte
unless the court requires otherwise. If the motion is
filed after the expiration of the prescribed time,
notice must be given to the other parties in accordance
with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30
days after the prescribed time or 14 days after the
date when the order granting the motion is entered,
whichever is later.
F. R. App. P. 4(a)(5) (emphasis added).
As noted above, the Judgment in favor of Defendants was
entered on May 22, 2019.

Docket No. 49.

Plaintiff had thirty

days to file a Notice of Appeal, which expired on June 21, 2019.
See Fed. R. App. P. 4(a)(1)(A) (“In a civil case, except as
provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of
appeal required by Rule 3 must be filed with the district clerk
within 30 days after entry of the judgment or order appealed
from.”).

Accordingly, pursuant to Fed. R. App. P. 4(a)(5)(A)(i),

Plaintiff was required to file for an extension of time by thirty
days after June 21, 2019, i.e., by July 21, 2019.

Plaintiff’s

motion, which was filed on July 26, 2019, is therefore untimely,
and must be denied.
Because

the

Court

has

denied

Plaintiff’s

motion

for

an

extension of time to file a Notice of Appeal (Docket No. 50), his
motion for leave to appeal in forma pauperis (Docket No. 51), is
denied as moot.

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CONCLUSION
For the reasons set forth above, Plaintiff’s motion for an
extension of time to file a Notice of Appeal (Docket No. 50) is
denied as untimely, and his motion for leave to appeal in forma
pauperis (Docket No. 51) is denied as moot.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
_______________________________
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED:

August 2, 2019
Rochester, New York

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