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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