Dale v. Biegasiewicz et al

Filing 41

ORDER dismissing as moot 39 Motion for Leave to Appeal in forma pauperis; denying 39 Motion for Extension of Time to File. The Clerk of Court is directed to serve Plaintiff with a copy of this Decision and Order by first class U.S. Mail at 805 Fillmore Avenue, Buffalo, New York 14212. Signed by Hon. Leslie G. Foschio on 01/06/2021. (TAH)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DAVID DALE,
DECISION
and
ORDER

Plaintiff,
v.
DEPUTY SIMON BIEGASIEWICZ,
DEPUTY JOSEPH RACZYNSKI, and
DEPUTY WARREN LUICK,

17-CV-01211F
(consent)

Defendants.
______________________________________
APPEARANCES:

THE LAW OFFICES OF MATTHEW A. ALBERT
Attorneys for Plaintiff
MATTHEW A. ALBERT, of Counsel
2166 Church Road
Darien Center, New York 14040
and
GRIFFIN DAVIS DAULT, of Counsel
388 Evans Street
Williamsville, New York 14221
MICHAEL A. SIRAGUSA
ERIE COUNTY ATTORNEY
Attorney for Defendants
JEREMY C. TOTH
Second Assistant County Attorney, of Counsel
ERIE COUNTY ATTORNEY’S OFFICE
95 Franklin Street
Room 1634
Buffalo, New York 14202

JURISDICTION
On June 4, 2018, the parties to this civil rights action consented pursuant to 28
U.S.C. § 636(c) to proceed before the undersigned. (Dkt. 17). The matter is presently
before the court on Plaintiff’s motion filed December 23, 2020 seeking an extension of
time to file an appeal with the Second Circuit Court of Appeals (Dkt. 39).

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BACKGROUND and FACTS 1
On November 24, 2017, Plaintiff David Dale (“Plaintiff” or “Dale”), commenced
this civil rights action asserting against Defendants, all employees of Erie County Sheriff
Department (“Defendants”), two claims for relief originating with a traffic stop on March
5, 2015, including for unreasonable seizure, false arrest, and false imprisonment in
violation of the Fourth and Fourteenth Amendments, and malicious prosecution in
violation of the Fourth and Sixth Amendments, and seeking compensatory and punitive
damages, as well as an award of attorney fees. In a Decision and Order filed October
21, 2020 (Dkt. 37) (“the D&O”), the undersigned granted Defendants’ motion for
summary judgment filed May 8, 2019 (Dkt. 27). Judgment in favor of Defendants was
entered on October 22, 2020 (Dkt, 38) (“October 22, 2020 judgment”).
Plaintiff maintains he learned of the D&O and judgment on October 28, 2020
when his attorney, Matthew Albert, Esq. (“Albert”), telephoned and advised Plaintiff of
the judgment. Plaintiff’s Declaration ¶ 4. According to Plaintiff, in early November
2020, after both he and Albert spent several days researching the merits of an appeal to
the Second Circuit Court of Appeals, Albert advised Plaintiff he was not able to
represent Plaintiff in the appeal but that Albert’s associate might be willing to handle the
appeal. Id. ¶¶ 5-6. On November 12, 2020, Albert advised Plaintiff the associate was
not able to represent Plaintiff, and Plaintiff arranged to pick up the case file from Albert
who to date has not formally withdrawn from representing Plaintiff. Id. ¶¶ 7-8. The case
file was not available for Plaintiff to retrieve from Albert until November 23, 2020, and

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The Facts are taken from the pleadings and motion papers filed in this action.

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Plaintiff was not aware of the deadline for filing an appeal with the Second Circuit. Id.
¶¶ 9-11.
No timely notice of appeal was filed and the matter is presently before the court
on Plaintiff’s motion for an extension of time to file a notice of appeal in accordance with
the Federal Rules of Appellate Procedure 4(a)(5)(A)(ii), and to proceed in forma
pauperis in this court (Dkt. 39) filed December 23, 2020 (“Plaintiff’s Motion”), attaching
the Declaration of David Dale (Dkt. 39 at 2-5) (“Plaintiff’s Declaration”), the Affidavit of
Matthew Albert, Esq. (Dkt. 39 at 6-7) (“Albert Affidavit”), and a Notice of Appeal (Dkt. 39
at 8) (“Notice of Appeal”). In opposition, Defendants filed on January 4, 2021 the
Attorney Declaration of Second Assistant County Attorney Jeremy C. Toth in Opposition
to Plaintiff’s Motion to Extend Deadline to Appeal (Dkt. 40) (“Toth Declaration”),
attaching exhibits A through E (Dkts. 40-1 through 40-5) (“Defendants’ Exh(s). __”), and
the Memorandum of Law in Opposition to Plaintiff’s Motion for Nunc Pro Tunc Relief
(Dkt. 40-6) (“Defendants’ Memorandum”). Oral argument was deemed unnecessary.
Based on the following, Plaintiff’s Motion is DENIED.

DISCUSSION
As relevant here, Rule 4 of the Federal Rules of Appellate Procedure requires a
notice of appeal “be filed with the district clerk within 30 days after entry of the
judgement or order appealed from.” Fed.R.App.P. 4(a)(1)(A) (“Rule 4(a) __”). Should a
party fail to timely file a notice of appeal, Rule 4(a) further provides that
(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

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(ii) regardless of whether its motion is filed before or during the 30 days
after the time prescribed by this Rule 4(a) expires, that party showed
excusable neglect or good cause.
Fed.R.App.P. 4(a)(5)(A)(i) and (ii) (italics added).
“‘The power of the federal courts to extend the time limits on the invocation of appellate
jurisdiction is severely circumscribed.’” See Goode v. Winkler, 252 F.3d 242, 245 (2d
Cir. 2001) (quoting Mendes Junior Int'l Co. v. Banco Do Brasil, S.A., 215 F.3d 306, 312
(2d Cir.2000)). Further, “[a] district court's order granting or denying motions under Fed.
R.App. P. 4(a)(5) is reviewed for abuse of discretion.” Id. (citation omitted).
In the instant case, with the entry of judgment on October 22, 2020, Plaintiff had
until November 21, 2020 to file his notice of appeal Fed.R.App.P. 4(a)(1)(A), and
having failed to do so, Plaintiff had until December 21, 2020 to filed a motion for an
extension of time in which to file the notice of appeal provided Plaintiff also
demonstrated either excusable neglect or good cause for the delay. Fed.R.App.P.
4(a)(5)(A). Plaintiff’s Motion, however, was not filed until December 23, 2020 and, as
such, is untimely, a point not discussed by the parties. Nevertheless, the untimely
nature of Plaintiff’s Motion alone is grounds for denying it. See Goode, 252 F.3d at 245
- 46 (finding district court abused its discretion in granting extension of time pursuant to
Rule 4(a) to file notice of appeal filed more than 30 days after original appeal filing
deadline based on district’s policy of “back-dating” pro se filings). Even assuming,
arguendo, Plaintiff’s Motion requesting an extension of time to file his notice of appeal
with the Second Circuit was timely filed, Rule 4(a)(5)(A)(ii) requires “excusable neglect
or good cause,” neither of which Plaintiff has demonstrated and, in fact, Plaintiff’s
argument asserts only excusable neglect.

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The so-called “Pioneer factors” articulated by the Supreme Court in discerning
excusable neglect in the context of a federal bankruptcy case, Pioneer Inv. Services Co.
v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 382-83 (1993), have been
adopted by the Second Circuit in considering excusable neglect in the context of
motions under Rule 4(a) for an extension of time to file a notice of appeal and other
cases. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003).
Significantly, “‘excusable neglect’ is an ‘elastic concept’ that ‘at bottom [is] an equitable
one, taking account of all relevant circumstances surrounding the party’s omission.’”
Redhead v. Conference of Seventh-Day Adventists, 360 Fed.Appx. 232, 234–35 (2d
Cir. 2010) (quoting Silivanch, 333 F.3d at 366) (further internal quotation marks and
citation omitted).
“The Pioneer factors for excusable neglect include ‘[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. 360 Fed.Appx. at 235 (quoting Silivanch, 333 F.3d at 366 (quoting Pioneer, 507 U.S.
at 395)).
The Courts of Appeal focus on the third factor and “‘continue to expect that a party
claiming excusable neglect will, in the ordinary course, lose under the Pioneer test.’” Id.
(quoting Silivanch, 333 F.3d at 366). “[B]ecause the rule governing the grant of an
extension to file a notice of appeal is unambiguous,” circumstances in which an
extension to file a notice of appeal is based on a “blunder – even if an honest mistake”
will not substantiate “excusable neglect.” Id.
Here, Plaintiff proffers in support of his claim for excusable neglect the Albert
Declaration in which Albert admits that despite communicating with Plaintiff regarding
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the case between October 22 and November 21, 2020, Albert neglected to advise
Plaintiff of the deadline for filing an appeal of the October 22, 2020 judgment. Albert
Declaration ¶¶ 8-9. Albert attributes this “error” to personal circumstances, including a
fire on June 22, 2020 at Albert’s home causing extensive damage, resulting in flooding,
and requiring Albert make repairs, id. ¶¶ 4-5, the Coronavirus pandemic requiring
Albert’s mother to quarantine in her New York City apartment, id. ¶ 6, and Albert
learning “in late October that [he] will not be practicing law for six months dues to an
involuntary leave of absence.” Id. ¶ 7. Albert, however, does not explain how his ability
to practice law was hindered by the fire at his home or his mother’s need to quarantine
in another city. Nor does Albert explain the asserted six-month “involuntary leave of
absence” commencing in “late October” during which time Albert nevertheless avers
maintaining communications with Plaintiff regarding this matter. 2 Id. ¶ 8 (Albert averring
he communicated with Plaintiff “over the course of the 30-day span from October 22
through November 21, 2020 . . . . “). As such, these circumstances, albeit unfortunate,
fail to even suggest the third factor is met, i.e., that the delay was not within Plaintiff’s
“reasonable control.” Redhead, 360 Fed.Appx. at 235 (finding that attorney
misapprehension in calculating period in which to file appeal did not constitute
excusable neglect as required for extending the time to appeal under Rule 4(a)(5)(A)).
Rather, at most, these circumstances establish a “blunder – even if an honest mistake”
which does not “substantiate ‘excusable neglect.’” Id. (quoting Silivanch, 333 F.3d at

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The court notes Albert’s attorney registration listing on the website maintained by New York State
Unified Court System shows Albert to be an attorney in good standing with “no record of public discipline,”
see New York State Unified Court System, Attorney On-Line Services Search, available at
https://apps.courts.state.ny.us/attorneyservices/wicket/page?1, last visited Jan. 6, 2021, which fact is
inconsistent with Albert’s asserted inability to provide legal assistance to Plaintiff.

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366). It is basic that a represented litigant assumes responsibility for the actions of his
attorney. See Motown Record Co., L.P. v. Motown Beverage Co. of Ohio, 165 F.3d 14,
14 (2d Cir. 1998) (“it is well-settled that litigants are legally responsible for their
attorneys’ conduct” (internal quotation marks and citation omitted)). Plaintiff thus has
failed to establish the requisite excusable neglect supporting his motion seeking an
extension of time to file a notice of appeal regarding the October 22, 2020 judgment.
Because the court is denying Plaintiff’s Motion seeking an extension of time to
file a notice of appeal, the court does not address the merits of extending Plaintiff’s time
to appeal based on asserted new case law decided seven days after the D&O
specifically, People v. Zelaya, 132 N.Y.S.3d 233 (N.Y.App.Term 2020), as Plaintiff
asserts, Plaintiff’s Declaration ¶¶ 15-18, Plaintiff’s assertion that allowing the late notice
of appeal is in the interest of justice in light of “the current climate of overwhelming
evidence of documented police abuse cases,” id. ¶ 19, or Plaintiff’s further request for in
forma pauperis status, Plaintiff’s Declaration ¶¶ 22-23.

CONCLUSION
Based on the foregoing, Plaintiff’s motion (Dkt. 39), is DENIED. The Clerk of the
Court shall serve Plaintiff with a copy of the Decision and Order by first class U.S. Mail
at 805 Fillmore Avenue, Buffalo, New York 14212.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

January 6th, 2021
Buffalo, New York
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Any petition for permission to appeal with the Circuit Clerk, United States
Court of Appeals for the Second Circuit, New York, New York, must be filed
within thirty (30) days pursuant to Fed.R.App. 4(a). Requests to proceed on
appeal as a poor person must be filed with the United States Court of
Appeals for the Second Circuit in accordance with the requirements of Rule
24 of the Federal Rules of Appellate Procedure.

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