Leathersich v. Cohen

Filing 15

DECISION AND ORDER denying 11 Motion for Extension of Time to File; and denying 14 Motion for Leave to Appeal in forma pauperis consistent with this Decision and Order. (Copy of this Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 10/3/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY C. LEATHERSICH,
Plaintiff,
6:18-cv-06363-MAT
DECISION AND ORDER

-v-

HONORABLE J. DENNIS COHEN,
Defendant.

INTRODUCTION
Pro se plaintiff Jeffrey C. Leathersich (“Plaintiff”)
filed the instant action on May 15, 2018.

Docket No. 1.

Plaintiff alleges that defendant, the Honorable J. Dennis
Cohen (“Defendant” or “Judge Cohen”), a Livingston County
Family Court Judge, violated his constitutional rights in
connection with his divorce and custody proceedings. On
July 23, 2018, the Court issued a decision and order
granting Defendant’s motion to dismiss the complaint and
denying Plaintiff’s motion for leave to amend as futile.
Docket No. 9. Judgment was entered in Defendant’s favor
on July 24, 2018. Docket No. 10.
Plaintiff how has moved for an extension of time to
file a notice of appeal, Docket No. 11, as well as for
leave to appeal in forma pauperis, Docket No. 14. For the
reasons discussed below, both applications are denied.

DISCUSSION
I.

Motion to Extend the Time to File a Notice of Appeal
The Clerk of Court entered judgment in favor of

Defendant on

Tuesday, July 24, 2018. Docket No. 10.

Pursuant to Federal Rule of Appellate Procedure (“FRAP”)
4,

“[i]n

a

civil

case,”

subject

to

exceptions

not

applicable here, “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.” FED.
R. APP. P. 4(a)(1)(A). FRAP 4(a)(5) allows a district
court to extend the time to file a notice of appeal if
the party “so moves no later than 30 days after the time
prescribed

by

this

Rule

4(a)

expires”

and

“shows

excusable neglect or good cause.” FED. R. APP. P. 4(a)(5).
Here, the original notice of appeal was due on or
before Thursday, August 23, 2018, i.e., 30 days after
July 24, 2018. See FED. R. APP. P. 4(a)(1)(A). With regard
to computing FRAP 4(a)(5)’s 30-day grace period, the
Second Circuit has held that the first day of that grace
period is the day following an appellant’s failure to
file a timely notice of appeal. Melton v. Frank, 891 F.2d
1054, 1057 (2d Cir. 1989). Therefore, the 30 days under
2

FRAP 4(a)(5) began to run on August 24, 2018. See id.
Plaintiff filed his motion for an extension of time to
file a notice of appeal on August 24, 2018, making it
timely

under

FRAP

4(a)(5).

The

Court

therefore

has

jurisdiction to entertain the motion. Melton, 891 F.2d at
1056 (“If . . . the motion to extend is not filed within
subdivision (a)(5)’s grace period, the district court is
without

power

to

grant

an

extension.”)

(citations

omitted).
When asked, on the form motion, to describe the
“excusable neglect” or “good cause” that led to his
failure to file an appeal within the required number of
days, Plaintiff states, “I was look [sic] at the court
clerks notice of ‘judgment in a civil case’” which is
dated

7/24/18.”

certainly

does

Docket
not

No.

amount

11.
to

This
“good

vague

assertion

cause.”

Because

Plaintiff is pro se, the Court surmises that Plaintiff is
arguing that his failure to file a timely notice of
appeal due to excusable neglect.
Although

the

Supreme

Court

has

instructed

that

pleadings filed by pro se litigants are to be held to a
less stringent standard than those filed by lawyers,
3

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam),
it has “never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.” McNeil v.
United States, 508 U.S. 106, 113 (1993).
In evaluating excusable neglect, the relevant factors
“include

‘[1]

[non-movant],

the
[2]

danger

the

length

of
of

prejudice

to

the

the

and

its

delay

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.’” Silivanch v. Celebrity
Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (quoting
Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 395 (1993) (“Pioneer”)). The first
and second Pioneer factors will usually favor the movant,
and

the

fourth

factor

generally

is

not

at

issue.

Silivanch, 333 F.3d at 366 (citation omitted). This case
does not require a different calculus.
However, it is the third factor upon which the Second
Circuit and other circuits have focused. Id. Concerns
about

finality,

as

well

as
4

the

desire

to

avoid

extensively litigating the equities every time a deadline
is missed, have led the Second Circuit to “take[ ] a hard
line”

in

its

cases

“addressing

when

neglect

is

‘excusable[.]’” Id. at 367 (collecting cases). The Second
Circuit has observed that where “the rule is entirely
clear, [it] continue[s] to expect that a party claiming
excusable neglect will, in the ordinary course, lose
under the Pioneer test.” Canfield Van Atta Buick/GMC
Truck Inc., 127 F.3d 248, 250–51 (2d Cir. 1997) (per
curiam) (citing Weinstock v. Cleary, Gottlieb, Steen &
Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) (affirming
denial of Rule 4(a)(5) extension where delay was due to
a misunderstanding of the rules, even though the rule in
question was “a ‘trap’ for the unsuspecting litigant” and
had been amended for that reason prior to circuit’s
decision); other citation omitted).
After canvassing the case law from this and other
Circuits, the Court concludes that excusable neglect has
not been established. Indeed, Plaintiff’s asserted reason
for the late filing—that he looked at the judgment,
entered July 24, 2018—does not make sense. July 24, 2018
was the correct date to consider in determining the
5

30-day period under FRAP 4(a). If the Court infers that
Plaintiff is saying that he should have looked instead at
the date the decision and order was entered, July 23,
2018, then his notice of appeal would have been due a day
earlier,

on

August

22,

2018.

Perhaps

Plaintiff

was

equating 30 days to a month, or perhaps Plaintiff did not
know that July is a 31-day month. Regardless, Plaintiff’s
neglect

amounts

to

a

simple

miscalculation

of

the

applicable time period. Even in cases involving pro se
litigants, courts have found that this does not rise to
the standard of excusable neglect. See, e.g., In re
Hongjun Sun, 323 B.R. 561, 566 (Bankr. E.D.N.Y. 2005);
Bethea v. Potter, No. 01 CIV. 11492 (DFE), 2003 WL
22023968, at *3 (S.D.N.Y. Aug. 27, 2003); Dix v. Saks,
Inc., No. 02CIV.8957(LAK)(DFE), 2003 WL 194210, at *2
(S.D.N.Y. Jan. 29, 2003), case dismissed sub nom. Dix v.
Saks, Inc./Off 5th, No. 02 CIV. 8957 (LAK), 2003 WL
21223289 (S.D.N.Y. May 22, 2003).
II. Motion for Leave to Proceed In Forma Pauperis
Since Plaintiff’s motion for an extension of time to
file a notice of appeal has been denied, his motion to
proceed in forma pauperis is denied as moot.
6

CONCLUSION
For the reasons set forth above, Plaintiff’s motion
to extend the time to file a notice of appeal, Docket
No. 11, is denied, and Plaintiff’s motion for leave to
proceed in forma pauperis, Docket No. 14, is denied.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

October 3, 2018
Rochester, New York

7