GITTENS v. KELLY et al
ORDER granting 10 Plaintiff's Motion to Reopen Time to File Appeal; denying 11 Plaintiff's Motion to Amend Civil Damages. For the reasons set forth herein, Plaintiff's Motion to Reopen is GRANTED. Plaintiff has 14 days from the date of this Order in which to file an appeal, if he so desires. Plaintiff's Motion to Amend Civil Damages is DENIED. Signed by Judge Cathy Bissoon on 7/27/18. (jdg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JUDGE ELIZABETH K. KELLY, et al.,
Civil Action No. 17-309
Judge Cathy Bissoon
This matter is before the Court upon Plaintiff Jamaal Gittens’ (“Plaintiff”) Motion to
Reopen Time to File Appeal (“Motion to Reopen”) (Doc. No. 10) and Motion to Amend Civil
Damages (“Motion to Amend”) (Doc. No. 11). For the reasons that follow, Plaintiff’s Motion to
Reopen will be granted and his Motion to Amend will be denied.
Plaintiff initiated this civil action on September 5, 2017, against Judge Elizabeth K. Kelly
and the Erie County Domestic Relations division. (Doc. No. 3). On November 16, 2017, this
Court issued an Order dismissing Plaintiff’s Complaint pursuant to the screening provisions set
forth in 28 U.S.C. § 1915(e). (Doc. No. 5). Judgment was entered against Plaintiff on the same
date. (Doc. No. 6).
On February 1, 2018, Plaintiff contacted the Court and stated that he had never received a
copy of the Order of Dismissal or the Judgment Order. (Docket Notation, 11/16/18). A copy of
both documents was mailed to Plaintiff that same day. (Id.) On February 16, 2018, Plaintiff
filed a Notice of Appeal. (Doc. No. 7).
In an Order entered on April 12, 2018, the Third Circuit Court of Appeals observed that
Plaintiff’s appeal was untimely but that he claimed to have never received this Court’s Order of
Dismissal. (Doc. No. 9). Consequently, the Court of Appeals construed Plaintiff’s Notice of
Appeal as a motion to reopen the time for appeal pursuant to Federal Rule of Appellate
Procedure 4(a)(6) and directed this Court to consider it as such. (Id.)
Under Federal Rule of Appellate Procedure 4(a)(6), a “district court may reopen the time
to file an appeal” so long as: (1) the party seeking to reopen the time to appeal did not receive
notice “of the entry of the judgment or order sought to be appealed within 21 days after entry”;
(2) “the motion is filed within 180 days after the judgment or order is entered” or within 14 days
after the movant receives notice, whichever is earlier; and (3) “the court finds that no party
would be prejudiced.” Fed. R. App. P. 4(a)(6).
Plaintiff has consistently maintained, both in filings to the Court of Appeals and in this
Court, that he never received the Court’s November 16, 2017 order dismissing this action. (Doc.
Nos. 7, 10). In the absence of any evidence to the contrary, and in light of Plaintiff’s otherwise
prompt and diligent activity in this lawsuit, the Court finds Plaintiff’s averments credible.
Moreover, Plaintiff’s Motion to Reopen was filed within 180 days of the Order of Dismissal, and
the reopening of the time for appeal will not prejudice any party, particularly as the Defendants
have never been served in this action. Because Plaintiff has satisfied all three conditions of Rule
4(a)(6), his Motion to Reopen will be granted. Plaintiff will have 14 days from the date of this
Order in which to file an appeal, if he so desires. See Fed. R. App. P. 4(a)(6) (“The district may
reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is
entered” if all conditions of Rule 4(a)(6) are satisfied).
Plaintiff’s second pending motion seeks leave to amend his Complaint to increase his
damage request from $500,000.00 to $2,000,000.00. (See Doc. No. 11). As Plaintiff’s
Complaint has already been dismissed with prejudice, his motion to amend that Complaint must
IT IS SO ORDERED.
July 27, 2018
s/ Cathy Bissoon
United States District Judge
cc (via First-Class U.S. Mail):
1206 Marlene Street
Charlotte, NC 28208
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