Martinez v Foster, et al

Filing 169

MEMORANDUM OPINION AND ORDER re 164 MOTION for Extension of Time to File NOTICE OF APPEAL filed by Delfino Garcia. Signed by Judge Richard A. Schell on 7/28/2017. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MARIA GUADALUPE MARTINEZ,
Individually, as a Legal Representative of the
Estate of DELFINO GARCIA, and Next
Friend of GEMMA GARCIA, a Minor,
GRETCHELL GARCIA, a Minor, DELFINO
GARCIA, JR., a Minor, and DELIA
MACEDO, Next Friend of EMELY
PARTICIA GARCIA,
Plaintiffs,

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v.
DONNIE FOSTER, COMMUNITY
EDUCATION CENTERS, INC., JAGDISH
A. SHAH, and JOHN DOES #1
THROUGH #35,
Defendants.

Case No. 4:13-CV-59
Appeal No. 17-40776

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
On June 21, 2017, this court entered a final judgment as to Defendant Jagdish A. Shah.
The Plaintiffs filed a notice of appeal on Monday, July 24, 2017. Also on Monday, July 24, 2017,
the Plaintiffs filed a “Motion for Extension of Time to File Notice of Appeal” (docket entry
#164). In their motion, the Plaintiffs note that the final day for filing a timely notice of appeal
was Friday, July 21, 2017. However, Plaintiffs’ counsel explains that the appellate deadline was
mistakenly calendared for Saturday, July 22, 2017 which would have afforded the Plaintiffs until
Monday, July 24, 2017 to timely file their notice of appeal. See FED. R. APP. P. 26(a)(1)(C).
Plaintiffs’ counsel states that the calendaring error was discovered when counsel prepared the
notice of appeal on Monday, July 24, 2017.
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Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure affords a civil appellant 30
days after entry of judgment in which to file a notice of appeal. Pursuant to Rule 4(a)(5) of the
Federal Rules of Appellate Procedure, a district court may extend the time to file a notice of
appeal if a party moves the court for an extension no later than 30 days after the time prescribed
by FED. R. APP. P. 4(a) expires and shows excusable neglect or good cause.
In Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380,
113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the United States Supreme Court established the
following factors to determine excusable neglect:
Because Congress has provided no other guideposts for determining what sorts of
neglect will be considered “excusable,” we conclude that the determination is at
bottom an equitable one, taking account of all relevant circumstances surrounding
that party’s omission. These include, as the Court of Appeals found, the danger
of prejudice [ ], the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.
Pioneer, 113 S.Ct. at 1498 (footnotes omitted).
In light of the foregoing, the court finds that the Plaintiffs have shown that the untimely
filing of their notice of appeal by one day was due to excusable neglect. The court finds that it
is unlikely that Defendant Jagdish A. Shah will suffer prejudice from the Plaintiffs’ delay in filing
their notice of appeal. See Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 820 (5th Cir.
2007). It is, therefore,
ORDERED that the Plaintiffs’ “Motion for Extension of Time to File Notice of Appeal”
(docket entry #164) is hereby GRANTED. It is further
ORDERED that the Clerk of this Court shall forward a copy of this memorandum to the

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United States Court of Appeals for the Fifth Circuit and to the parties in this lawsuit.
IT IS SO ORDERED.
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SIGNED this the 28th day of July, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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