Vang v. Valdese Weaver et al

Filing 24

MEMORANDUM OF DECISION AND ORDER re the limited remand from the Fourth Circuit Court of Appeals pursuant to 23 Unpublished Opinion and Order - USCA: IT IS, THEREFORE, ORDERED that the Plaintiff's request that her Notice of Appeal be accepted as timely is DENIED. Signed by Chief Judge Martin Reidinger on 2/8/2023. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:22-cv-00119-MR-WCM
PAKUJA CRYSTAL VANG,

)
)
Plaintiff,
)
)
vs.
)
)
VALDESE WEAVER, MELISSA )
MITCHELL, SCOTT LNU,
)
BRITTANY LNU, NANCY YANG, )
)
Defendants.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court upon remand from the Fourth
Circuit Court of Appeals for the limited purpose of allowing this Court to
determine whether the Plaintiff, Pakuja Crystal Vang (“Plaintiff”), has
demonstrated excusable neglect or good cause warranting an extension of
the appeal period. [Doc. 23].
I.

PROCEDURAL BACKGROUND
On June 9, 2022, the Plaintiff filed the present civil action against

Valdese Weaver, her former employer; Melissa Mitchell, a safety manager;
Scot LNU, a plant manager; Brittany LNU, a human resources officer; and
Nancy Yang, a plant coordinator, purportedly asserting claims pursuant to
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.

(“ADA”). [Doc. 1]. Along with her Complaint, the Plaintiff filed an Application
to proceed without the prepayment of fees or costs. [Doc. 2]. On June 27,
2022, the Honorable W. Carleton Metcalf, United States Magistrate Judge,
denied the Plaintiff’s Application without prejudice for failing to provide all the
information necessary to determine whether the Plaintiff has sufficient
resources from which to pay the filing fee. [Doc. 3].
When no amended application was forthcoming, the Court entered an
Order on August 5, 2022, directing the Plaintiff to file an amended application
or pay the required filing fee within fourteen (14) days. [Doc. 4]. The Plaintiff
was specifically warned that failure to file an amended application or pay the
filing fee within the time required would result in the dismissal of this action
without prejudice. [Id.]. More than fourteen (14) days passed without any
filing from the Plaintiff. On September 1, 2022, the Court entered an Order
dismissing this action without prejudice. [Doc. 5].
On September 19, 2022, the Plaintiff filed an amended Application
[Doc. 7] and a letter addressed to the Court, requesting to receive electronic
notification of filings [Doc. 8]. Before the Court could rule on her Application,
however, the Plaintiff filed a Notice of Appeal with the Fourth Circuit Court of
Appeals, thereby divesting this Court of jurisdiction. [Doc. 11]. Along with
her Notice of Appeal, the Plaintiff filed a letter addressed to the Court
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requesting an appeal. [Doc. 9]. On November 22, 2022, while her appeal
was pending, the Plaintiff filed an Amended Complaint. [Doc. 19]. On
January 19, 2023, the Court of Appeals issued a decision stating that it
liberally construed her letter to this Court requesting an appeal [Doc. 9] as a
motion for an extension of the appeal period and accordingly remanded to
this Court “for the limited purpose of determining whether Vang has
demonstrated excusable neglect or good cause warranting an extension of
the appeal period.” [Doc. 23]. Accordingly, the matter is now properly before
the Court for this limited purpose.
II.

DISCUSSION
A litigant must file a notice of appeal in a civil suit within thirty days of

the entry of judgment. Fed. R. App. P. 4(a)(1)(A). The timely filing of a notice
of appeal is mandatory and jurisdictional. Bowles v. Russell, 551 U.S. 205,
214 (2007). The district court may extend the time for filing a notice of appeal
if a party moves for an extension of the appeals period within 30 days after
the expiration of the original appeals period and the party demonstrates
either excusable neglect or good cause to warrant the extension.
Fed. R. App. P. 4(a)(5).
In her letter to the Court, the Plaintiff stated: “I haven’t been able to
check my po boxes because I been [sic] traveling back and forth. Fighting
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for medical treatment and everything.” [Doc. 9 at 1]. She also stated that she
is “currently homeless and [doesn’t] check [her] mailbox all the time.” [Id.].
The Court concludes that the Plaintiff’s reasons for her failure to timely
file a notice of appeal are insufficient to demonstrate good cause or
excusable neglect. The Plaintiff has failed to connect either her living
situation or her medical treatment to why she was unable to timely file a
notice of appeal. While the Plaintiff mentions being homeless in the same
sentence in which she mentions not checking her mail, she fails to explain
how or if the two are related. She similarly alludes to travel for medical
treatment without explaining the extent of such travel or how much of the
thirty-day filing period was consumed by travel and treatment. The excuses
offered by the Plaintiff are vague and fail to demonstrate good cause or
excusable neglect, and she has thus failed to provide the Court with an
adequate explanation of why she was prevented from filing a notice of appeal
at any point during the thirty days she had to timely file.
Moreover, the Plaintiff’s appeal was not of a final order. “Generally, an
order dismissing a complaint without prejudice is not an appealable final
order under 28 U.S.C. § 1291 when ‘the plaintiff could save [her] action by
merely amending [her] complaint.’” Young v. Nickols, 412 F.3d 416, 418 (4th
Cir. 2005) (quoting Domino Sugar Corp. v. Sugar Workers Loc. Union 392,
4

10 F.3d 1064, 1066-67 (4th Cir. 1993)). Here, the Plaintiff could have saved
her action by filing an amended application to proceed without prepayment
of fees or costs.1 Accordingly, were the Court to allow the Plaintiff to appeal
despite her failure to timely file a notice of appeal, it appears that her appeal
would be futile and serve only to delay this action.
Accordingly, the Court concludes that the Plaintiff’s notice of appeal
was not timely filed and she has not shown good cause or excusable neglect
warranting an extension of the time to file an appeal.
IT IS, THEREFORE, ORDERED that the Plaintiff’s request that her
Notice of Appeal be accepted as timely is DENIED.
IT IS SO ORDERED.
Signed: February 8, 2023

1

The Plaintiff did ultimately file an amended application but filed her Notice of Appeal
before the Court ruled on this application.

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