Moreno v. Expedia

Filing 21

ORDER Denying 20 Motion for Leave to Appeal. Signed by Senior Judge Graham Mullen on 10/31/2018. (Pro se litigant served by US Mail.)(jaw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
NO. 3:18-CV-105
FRANK MORENO,

Plaintiffs,
vs.
EXPEDIA,
Defendants.

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ORDER

This matter is before the Court upon the pro se Plaintiff’s September 24, 2018 letter
motion requesting an extension of time to appeal the Court’s June 20, 2018 Order granting
Defendant’s Motion to Compel Arbitration. The Defendant has filed a response in opposition
and the Plaintiff has filed a Reply. This matter is now ripe for disposition.
Plaintiff Frank Moreno initiated this lawsuit against Defendant Expedia on January 30,
2018, asserting a claim under the Consumer Protection Act (RCW 19.86) of the State of
Washington and a claim under the Federal Trade Commission Act (“FTCA”) for “false or
misleading” advertising arising out of Plaintiff’s decision to utilize Expedia’s website to book
travel accommodations near Charleston, South Carolina in December 2017.
Defendant moved to compel arbitration and the Court entered its Order granting that
motion on June 20, 2018. A copy of this Order was mailed to the Plaintiff at the address
provided to the Court. Thirty days passed without Plaintiff filing a Notice of Appeal as provided
under Rule 4 of the Federal Rules of Appellate Procedure or other filing seeking reconsideration

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or review of the Order. Plaintiff claims that he called the Clerk’s Office on September 5 to
inquire about the pending motion and learned that the Court had granted it. After requesting a
copy of the Order, Plaintiff asserts he received a copy on September 9, 2018. On September 24,
2018, Plaintiff sent correspondence to the Court indicating that he received a copy of the Order
from the Court on September 9, 2018, asserting that had he timely received a copy of the Order
he would have filed a notice of appeal, and requesting that he be provided additional time to
appeal the Order.
Rule 4(a)(5) of the Federal Rules of Appellate Procedure allows the Court to 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 (2) regardless of whether its motion is filed before or
during the 30 days after the time prescribed by this Rule 4(a) expires, the party shows excusable
neglect or good cause.” Rule 4(a)(1) allows thirty (30) days following the entry of an order to file
a notice of appeal.
Plaintiff herein seeks to extend the time to file a notice of appeal approximately ninetyfive days after the Court issued its Order. Plaintiff’s time to file the motion expired thirty-five
days prior to the filing of his request and therefore his request is untimely.
Even if his request was timely, Plaintiff has failed to establish excusable neglect or good
cause. Even if Plaintiff did not receive a copy of the Order until September 9, as he claims, he
did not seek leave to appeal the Order until September 24th, more than two weeks later. Plaintiff
has offered no explanation for this delay and has offered no basis upon which the Court could
determine that such delay is “excusable” or that “good cause” exists for allowing Plaintiff to file
a Notice of Appeal at this juncture. Accordingly,

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IT IS THEREFORE ORDERED that Plaintiff’s letter motion to extend time to file a
notice of appeal is hereby DENIED.

Signed: October 31, 2018

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