DAVIS v. NORTHAMPTON COUNTY DEPARTMENT OF CORRECTIONS et al

Filing 58

MEMORANDUM OPINION. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 11/22/16. 11/23/16 ENTERED AND COPIES MAILED TO PRO SE AND UNREP, E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARC DAVIS

: CIVIL ACTION
:
v.
: NO. 14-cv-6242
:
NORTHAMPTON COUNTY
:
DEPARTMENT OF CORRECTIONS, et al. :

MEMORANDUM OPINION
SCHMEHL, J.

/s/ JLS

NOVEMBER 22, 2016

By Memorandum Opinion and Order filed on July 8, 2016, the Court entered judgment
in favor of the defendants and against the pro se plaintiff, a former inmate at the Northampton
County Jail. (ECF 48, 49.) The docket reflects that both the Memorandum Opinion and Order
were sent to plaintiff’s address of record (Id.) On September 1, 2016, plaintiff filed a Motion for
Extension of Time to File a Notice of Appeal pursuant to Rule 4(a)(5)(A) of the Federal Rules
of Appellate Procedure. (ECF 50.) On that same date, plaintiff also filed a formal Notice of
Appeal with the Court of Appeals for the Third Circuit. (ECF 51.) On October 11, 2016,
plaintiff filed a second Notice of Appeal to the Third Circuit. Defendants have filed an
opposition to the plainitff’s motion for an extension of time. (Doc. 53.) and plaintiff has filed a
reply. (Doc. 55.) For the reasons that follow, the motion is denied.
As both the United States Supreme Court and the Court of Appeals for the Third
Circuit have recognized, the timely filing of a notice of appeal is “mandatory and
jurisdictional.” Hohn v. United States, 524 U.S. 236, 247 (1998); Benn v. First Judicial
Dist. of Pa., 426 F.3d 233, 237 (3d Cir. 2005); see also Fed. R. App. P. 3(a)(l ). Under the

1

Federal Rules of Appellate Procedure, a notice of appeal in a civil case must be filed with
the district clerk within thirty (30) days after entry of the judgment or order appealed
from. See Fed. R. App. P. 4(a)(l )(A).
Despite the general rule that a notice of appeal must be filed within thirty (30) days,
district courts do “ have limited authority to grant an extension of the 30-day time
period."

Bowles v. Russell, 551 U.S. 205, 214 (2007);

see also

Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 323 (3d Cir. 2012). However, a
"district court may extend the time to file a notice of appeal only 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
Rule 4(a) expires, that party shows excusable neglect or good cause." See Fed. R. App. P.
4(a)(5)(A) (emphasis added).
While plaintiff has satisfied the first requirement of Appellate Rule 4(a)(5)(A),
since he filed the present Motion for Extension a few days before the thirty (30) day grace
period expired, plaintiff fails to show either good cause or excusable neglect for his untimely
appeal and extension of time request.
The "good cause" standard applies where the motion for extension is "occasioned
by something that is not within the control of the movant . . . . If, for example, the Postal
Service fails to deliver a notice of appeal . . . ."Fed. R. App. P. 4(a)(5)(A)(ii), Advisory
Committee Notes to 2002 Amendments.
Here, the motion for an extension is occasioned by events solely within the
control of the plaintiff. Pla intif f has not s et f or th a ny circumstances or set of

2

circumstances that he claims prevented h i m from timely filing the notice of appeal.
More specifically, nothing in plaintiff s papers suggests that he did not receive notice of
this Court's Memorandum Decision and Order of July 8, 2016, both of which were
mailed to his address of record and both of which appeared on the ECF system. There
cannot be good cause, as the failure to file a timely notice of appeal was caused by
plaintiff.
"The excusable neglect standard applies in situations in which there is fault; in such
situations, the need for an extension is usually occasioned by something within the control of
the movant." Fed. R. App. P. 4(a)(5)(A)(ii), Advisory Committee Notes to 2002
Amendments.
In order to determine whether p laintiff's neglect is 'excusable,' t his Court must
weigh four (4) factors: (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. Kanoff v. Better Life Renting Corp., 350 F. App'x 655, 657 (3d
Cir. 2009) (citing Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 388 (1993)).
While the law is clear that "no one factor is dispositive," it is equally clear that
''`inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute excusable neglect.’" Id. (quoting Pioneer, 507 U.S. at 392). The standard for
determining excusable neglect is a strict one and excusable neglect applies only to

3

extraordinary cases where injustice would otherwise result. Consol. Freightways Corp. v.
Larson, 827 F.2d 916, 918 (3d Cir. 1987) (citing Advisory Committee Notes to 1966
amendment to Fed. R. Civ. P. 73, the predecessor of Fed. R. App. P. 4(a)).
All four (4) factors weigh in favor of denying plaintiff's Motion.
1. Danger of Pre judice to Defendants
First, defendants would endure prejudice if the Court grants plaintiff's application and
allows him to pursue his appeal. Following the litigation of this case, the entry of judgment
in defendants' favor on July 8, 2016, and the expiration of the appeal deadline thirty days later,
defendants reasonably believed and expected that this matter had reached a final resolution.
It was not until the filing of the present Motion on September 1, 2016 that defendants first
learned of plaintiff's b el at ed intent to appeal.
Moreover, defendants were then forced to expend additional time and resources on
continuing to litigate this matter by filing an opposition to the current motion in order to
preserve the finality of the judgment defendants believed they had obtained. See Lima v.
Aetna Life Ins. Co., 2013 U.S. Dist. LEXIS 181808, at *5 (D.N.J. Sept. 22, 2014) (finding
that the defendants' effort to oppose a motion for extension of time to file a notice of appeal
reflected that a, discernable amount of prejudice did in fact inure to the defendants from the
delay by the plaintiff in filing a timely appeal).
Accordingly, Defendants will be sufficiently prejudiced by the granting of this
Motion such that the first factor weighs against plaintiff.
2. Length of Delay
4

The second factor requires t h e Court to consider the length of the delay and its
impact on judicial proceedings. Plaintiff had a total of sixty (60) days from the date the
Order and Memorandum Decision was filed to file the instant m o t i o n f o r a n
e x t e n s i o n . See Fed. R. App. P. 4(a)(5)(C). Plaintiff waited until a p p r o x i m a t e l y 5 6
da ys from the date judgment was entered and 26 da ys from the date
t h e N o t i c e o f A p p e a l w a s d u e , before filing the instant motion. At no time did
plaintiff ever communicate his intent to appeal with defendants or their counsel. As a result,
the second factor weighs against pl ai nt i ff.
3. Reasons for Delay
The only reasons plaintiff gives to support his request for an extension of time are
that he is “a layman not versed in the law and is a novice” and because he “does not have
access to a legal data base nor [sic] [r]egular access to the Internet.” (ECF 50). Plaintiff
also believes that “no one will be prejudiced” if the court were to grant his application.
(Id.)
To the extent plaintiff c l a i m s that his delay was caused by his pro se status, a review
of the docket reflects otherwise. The p ro se plaintiff submitted approximately half of the fiftyone (57) pleadings that have been filed in this matter to date including, but not necessarily
limited to, his Complaint (ECF 5), Motion for Leave to File a First Amended Complaint (ECF
17), Amended Complaint (ECF 23), Motion for Extension of Time to Serve Process pursuant to
Rule 4(m) Rule 6(b)(l) of the Fed. R. Civ. P. (ECF 35), Motion to Compel Discovery (ECF
36), Motion for Summary Judgment (ECF 39), Response in Opposition to Defendants’
Motion for Summary Judgment (ECF 43) and the instant m o t i o n (ECF 50). The

5

sophistication of these pleadings and plaintiff's ability to cite and apply the relevant case and
statutory law belie his contention that he is merely a "layman" or "novice," not "versed in the
law." As such, plaintiff’s pro se status should not qualify as a valid reason for his delay.
Equally flawed is Plaintiff's reliance on limited access to legal databases and/or the
internet as the basis for his delay. Although the events giving rise to this case allegedly
transpired during plaintiff's incarceration at the NCJ, he is not and has not been incarcerated
for the entirety of this litigation. See Compl. (Doc. No. 5) (identifying Plaintiff's mailing
address as 1900 N. Congress Ave., H-109, West Palm Beach, FL). Countless organizations
throughout this Country, including public libraries and many state courts, offer free internet
and legal database access. Because he is not and was not incarcerated at any material time
hereto, p laintiff had thirty (30) days in which he could have accessed the internet and/or legal
databases, yet failed to do so.
4. Absence of Good Faith
Finally, plaintiff s inaction demonstrates an absence of good faith. Plaintiff failed to
make any tangible effort to attempt to meet the notice of appeal deadline. Plaintiff also
failed to communicate any desire to appeal, in any form. As such, plaintiff has failed to
demonstrate a good faith effort to comply with the Rules of this Court. See Avery v.
Hendricks, 2006 U.S. Dist. LEXIS 32757 (D.N.J. May 23, 2006) (holding that the
petitioner failed to demonstrate a good faith effort to comply with the rules of the court
because he failed to communicate a desire to appeal with the court or his adversary).

6

Because each of the four (4) factors for finding excusable neglect weighs against
plaintiff and because plaintiff has also failed to show good cause, plaintiff s Motion for
Extension of Time to File a Notice of Appeal is denied.

7

8