Welbig v. City of Brookings et al

Filing 93

ORDER re 91 MOTION to Extend. Trial counsel affidavit due 7/10/17. Signed by U.S. District Judge Lawrence L. Piersol on 6/28/17. (SLW)

HLED
UNITED STATES DISTRICT COURT

2 8 2017

DISTRICT OF SOUTH DAKOTA
clerk

SOUTHERN DIVISION
*

TAMRA WELBIG,

*

CIV 15-4085

*

Plaintiff,

'*
*

-vs-

JORDAN HANSEN;
JORDAN McCASKILL; and
JUSTINA HILMOE,

* ORDER REGARDING PLAINTIFF'S
*
MOTION FOR EXTENSION
*
OF TIME TO APPEAL
*
*
*

Defendants.

*
*

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The Plaintiff, Tamra Welbig ("Welbig), previously represented by a lawyer in this lawsuit,

has filed a pro se motion for extension of time to file a Notiee of Appeal with the Eighth Circuit.
(Doc. 91.) Defendants did not respond to the motion. For the reasons stated below, the record is
insufficient to decide the motion and Welbig's counsel will be directed to file an affidavit in order
to supplement the record.

BACKGROUND

Welbig sustained injuries when she was arrested by Defendant police officers on June 5,
2012. A jury trial was held on her claims that Defendants violated 42 U.S.C. § 1983 during her
arrest. On July 1,2016,the jury returned a verdict in favor ofDefendants on all of Welbig's claims.
Welbig filed a motion for new trial pursuant to Rule 59 ofthe Federal Rules ofCivil Procedure. This

Court denied that motion in a Memorandum Opinion issued on February 14,2017. (Doe. 87.) The
record shows that the Clerk of Court electronically mailed notice of entry of the Memorandum

Opinion to Welbig's lawyer and to defense counsel. The time in which Welbig could file an appeal
as of right expired thirty (30) days later on March 16, 2017. See Fed.R.App.P. 4(a)(1)(A);
4(a)(4)(A)(v). On April 14, 2017, Welbig filed a notice of appeal (doe. 89) and a motion for an

extension oftime to file a notice of appeal(doc. 91). The record shows that the pro se motion and
notice ofappeal were electronically mailed by the Clerk ofCourt to Welbig's lawyer and to defense
counsel. No response has been filed to the motion for extension oftime.

DISCUSSION

Federal Rule ofAppellate Procedure 4(a)(1) provides that, subject to certain exceptions not

applicable here, a notice ofappeal must be filed with the district court clerk within thirty days "after
entry ofjudgment or order appealed from." Rule 4(a)(5)(A) provides for an extension ofthe thirty
day appeal period "if a party so moves no later than 30 days after the time prescribed" and if that
party "shows excusable neglect or good cause." Fed.R.App.P. 4(a)(5)(A).

Here, the appeal period deadline was March 16, 2017, thirty days after entry of the
Memorandum Opinion and Order denying the motion for new trial. Welbig's pro se Notice of
Appeal was not filed until April 14, 2017, twenty-nine(29) days after the time prescribed in Rule
4(a)(1). She also filed the pending motion for extension oftime on April 14,2017. Thatmotionwas
timely as it was filed during the requisite thirty(30) day time period to move for an extension as
prescribed in Rule 4(a)(5)(A).

A district court may extend the time to file a notice ofappeal ifthe party seeking an extension
shows that the failure to file a timely appeal was the product of"excusable neglect or good cause."
Fed.R.App.P. 4(a)(5)(A)(ii); see, e.g., Gibbons v. United States, 317 F.3d 852,853(8th Cir. 2003).
The Eighth Circuit has explained that courts are to consider four factors in determining whether

excusable neglect or good cause'for an extension oftime to appeal exist:(1)the danger ofprejudice

' The "good cause" provision is intended "to take account of a narrow class ofcases in which
a traditional 'excusable neglect' analysis would be inapposite" because "there is no neglect(and,thus,
nothing to excuse)." Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 630 (1st Cir. 2000); see also
Fed.R.App.P.4, advisory committee notes to the 2002 amendments(the good cause standard "applies
in situations where there is not fault -excusable or otherwise[,]" i.e., "the need for an 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, a movant might have good cause to seek a post-expiration
extension.").

to the non-moving party;(2)the length ofdelay and its potential impact onjudicial proceedings;(3)
the reason for the delay, including whether it was within the reasonable control ofthe movant; and
(4)whether the movant acted in good faith.Lowty v. McDonnellDouglas Corp.,211 F.3d 457,462
(8th Cir. 2000){ciimg Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. F'ship, 507 U.S. 380, 395

(1993)). These four factors are not equallyimportant;"the excuse given for the late filing must have
the greatest import" and "will always be critical to the inquiry." Lowry, 211 F.3d at 463. "The
determination of whether neglect is excusable 'is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party's omission.'" Chorosevic v. MetLife Choices, 600
F.3d 934,946(8th Cir. 2010)(quoting Pioneer, 507 U.S. at 392).

With respect to the first two factors, the Court finds that the length of delay is moderate
because Welbig filed this motion and her notice ofappeal twenty-nine days after her initial deadline
to file a notice of appeal expired. There is at least some small amount of prejudice to Defendants
because surely they were under the impression, as was this Court, that the case was fully resolved
when the appeal deadline expired on March 16, 2017, and they continued with this belief until

Welbig filed the motion for an extension almost a month later on April 14, 2017.^ These factors
weigh slightly against Welbig.

Regarding the fourth factor, whether the movant acted in good faith, there is no sign that
Welbig acted in bad faith in filing the motion requesting an extension oftime to appeal. This factor
weighs in favor of Welbig.

Finally, the Court must address the most important factor, the reason for the delay. In her
motion for an extension oftime to appeal, Welbig explains the reason for her delay:

^ The Eighth Circuit has noted,"We do not think it can make a difference that no harm to the
appellee has been shown. There is unlikely ever to be harm in the Rule 4(a)(5) setting, because the
neglectful appellant has only 30 days after the expiration of his time for appealing in which to request
relief." Lowry,211 F.3d at 463(quoting Pnzevo/A v.Indiana Bell Tel. Co.,76 F.3d 132,134(7th Cir.
1996).

I, Tamra Welbig, desire to appeal the deeision in this action which was entered on

February 14"^, 2017, but failed to file a notice of appeal within the required number
of days because: Due to my attorneys lack of communication and failure to notify
me I was denied a new trial. I found out I was denied via the internet. He refused to

communicate with me via phone or letter; as well as failure to inform me that I had

other options that could have been pursued. At this point, I believe I have shown
"good cause." I am currently defending myself and pursuing new counsel. I
respectfully ask the court to please take my words into consideration.

(Doe. 91.) Welbig's trial lawyer has not submitted an affidavit explaining the circumstances
surrounding his failure to file a notice of appeal.^

This Court has reviewed numerous eases from the Eighth Circuit and other courts for

guidance in analyzing whether a reason for a delay in filing a notice of appeal meets the definition
ofexcusable neglect or good cause under Rule 4(a)(5)(A)(ii). The typical case involves an attorney's
failure to timely file an appeal due to a mistake, confusion, error or some external event that

interfered with meeting the deadline. The courts focus on the conduct ofthe attorney who failed to
act in a timely fashion on behalfofhis or her client. See, e.g.. Treasurer, Trustees ofDrury Indus.,

Inc. Health ^are Plan & Trust v. Coding,692 F.3d 888, 898 (8th Cir. 2013)(appeal filed one day
late due to error in law firm's computer calendaring application was excusable neglect because it was
"an error in attempting to comply"and not due to procrastination or ignoring the deadline); Gibbons,
317 F.3d at 854-55 (lawyer's extended vacation and subsequent illness causing delayin filing notice
of appeal is not the type of neglect meriting relief under Rule 4(a)(5)); Lowry,211 F.3d at 463-64

(neglect was not excusable when the delay was due to "garden-variety attorney inattention," and the
attorney's excuses for it were "thin" and unclear). The lawyer's actions are the focus because parties
are bound by the acts and omissions oftheir lawyers. See Pioneer, 507 U.S. at 396 ("clients must

be held accountable for the acts and omissions oftheir attorneys"). The Supreme Court has indicated
that the question is not whether the client "did all [she] reasonably could in policing the conduct of

^ Although Welbig states in her motion that she is defending herself and pursuing new
counsel, the record does not show that trial counsel has withdrawn from representing Welbig, and
no other lawyer has entered an appearance.

[her] attorney," but rather ifthe"attorney, as[her]agent,did all he reasonably could to comply"with
the deadline. Id.

Because Welbig's trial lawyer has not submitted an affidavit explaining the circumstances
surrounding his failure to file a timely notice of appeal, the record is insufficient for this Court to

determine whether there exists excusable neglect or good cause sufficient to extend the time to file
a notice of appeal under Rule 4(a)(5)(A)(ii). Accordingly,

IT IS ORDERED that, on or before Monday, July 10, 2017, Welbig's trial counsel
will submit an affidavit stating if, when and how he notified Welbig ofthe Court's

Memorandum Opinion and Order denying the motion for new trial, and explaining
in detail the circumstances surrounding his failure to file a notice of appeal.
Dated this Cy day of June, 2017.
BY THE COURT:

&

wrence L. Piersol

istriet Court Judge
ATTEST:

JOSEPH HAAS,CLERK

(SEAL)

deputy