Xu v. The University of Texas M.D. Anderson Cancer Center et al

Filing 78

MEMORANDUM AND ORDER GRANTING 76 MOTION for Extension of Time to file Notice of Appeal (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JINGPING XU,
Plaintiff,
v.
THE UNIVERSITY OF TEXAS
MD ANDERSON CANCER CENTER,
et al.,
Defendants.

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§ CIVIL ACTION NO. 4:10-cv-3711
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MEMORANDUM AND ORDER
Pending before the Court is Plaintiff Jingping Xu’s Motion for Extension of Time to File
a Notice of Appeal. (“Motion”; Doc. No. 76.) Following several motions seeking dismissal, Ms.
Xu’s remaining claims were dismissed by this Court in a hearing on October 9, 2013, and the
Court entered final judgment on October 16, 2013. (Doc. No. 75.) Under Federal Rule of
Appellate Procedure 4(a)(1)(A), Ms. Xu then had thirty days from entry of judgment, until
November 15, 2013, to file a Notice of Appeal. She did not do so. On November, 22, 2013, Ms.
Xu filed the pending Motion, seeking an extension of the time in which to file her Notice of
Appeal. After considering the Motion and the Defendants’ Response (Doc. No. 77), the Court
finds excusable neglect sufficient to justify an extension. Accordingly, the Court will GRANT
Ms. Xu’s Motion.
I. LEGAL STANDARD
Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure provides that “[t]he district
court may 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 (ii) regardless of whether its motion is

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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.” The relevant 2002 Advisory Committee Notes state that
“[t]he 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.
The good cause standard applies in situations in which there is no fault--excusable or otherwise.
In such situations, the need for an extension is usually occasioned by something that is not within
the control of the movant.” Fed. R. App. P. 4, 2002 Advisory Committee Notes.
The excusable neglect inquiry is both equitable and flexible, and considers all the
relevant circumstances. Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 820 (5th Cir.
2007); United States v. Clark, 51 F.3d 42, 43-44 (5th Cir. 1995) (citing Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). Such
considerations include possible prejudice, the length of the delay and the impact on judicial
proceedings, the reason for the delay, including whether it was within the movant’s control, and
whether the movant acted in good faith. Stotter, 508 F.3d at 820 (quoting Midwest Employers
Cas. Co. v. Williams, 161 F.3d 877, 879 (5th Cir. 1998)). Excusable neglect is a “somewhat
elastic” concept, and should be interpreted accordingly. See Clark, 51 F.3d at 43 (quoting
Pioneer, 507 U.S. at 392) (internal quotation marks omitted). Nevertheless, “inadvertence,
ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’
neglect.” Id. (quoting Pioneer, 507 U.S. at 392) (internal quotation marks omitted).
II. ANALYSIS
In her Motion, Ms. Xu, proceeding pro se, reports that she encountered two traffic
accidents on her way to timely file her Notice of Appeal, and that the resulting delays, which
were not of her making and were out of her control, meant that she arrived at the Court Clerk’s

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office after it had closed for the day. Ms. Xu argues that this constitutes good cause for an
extension. Mot. at 1.
Defendants counter that filing so close to the deadline was irresponsible and is
unjustifiable. They argue that filing was well within Ms. Xu’s control, and offer several reasons
why she has not satisfied the (more exacting) excusable neglect showing. First, Defendants
report that Ms. Xu was inquiring into the deadline for filing a Notice of Appeal shortly after the
hearing at which her claims were dismissed. Doc. No. 77-1 ¶ 3. This, they claim, shows that she
was fully cognizant of the deadline. Defs.’ Resp. at 4. Further, Defendants contend that
“[t]hroughout the litigation prior to the dismissal, Plaintiff had demonstrated that she was
proficient in the rules of procedure and the applicable law by filing several petitions and other
motions as a pro se litigant.” Id. Defendants also argue that Ms. Xu is not acting in good faith
because she did not indicate in her Motion when she learned of the deadline and because she still
has not filed a Notice of Appeal. Id. at 5. Defendants further argue that Ms. Xu did not have to
file it in person and could have timely filed by mailing her Notice of Appeal. Id. at 5-6. Finally,
Defendants claim that they would be unfairly prejudiced because they would be forced to
continue to litigate Ms. Xu’s claims. Id. at 6.
The Court is not convinced by Defendants’ arguments. Here, Ms. Xu, proceeding pro se,
filed for an extension only one week after the expiration of the deadline, so any resulting delay
can only be minimal. Defendants see Ms. Xu’s inquiring into the deadline so soon after the
hearing as proof that Ms. Xu knew of the deadline, but Ms. Xu does not claim ignorance of the
deadline. Rather, she argues that she missed it due to circumstances beyond her control. In light
of this, the Court views Ms. Xu’s inquiry as reflecting her good faith and an interest in filing
properly and punctually. Defendants argue that Ms. Xu should have shown her good faith by

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filing the Notice of Appeal, but the Court is not disturbed by the fact that, instead, Ms. Xu has
chosen to seek leave to file before doing so. Defendants claim unfair prejudice because they
would have to continue to litigate this matter, but that is hardly sufficient reason to deny an
appeal as of right. Finally, although Defendants are correct that the more responsible course of
action would have been to leave time for events such as traffic delays, or to timely mail the filing
(which, contrary to Ms. Xu’s belief, she may do), and in that respect, the reason for the untimely
filing was within Ms. Xu’s control, the Court does not deem this sufficient to deny an extension.
Accordingly, the Court finds that Ms. Xu has shown excusable neglect justifying an enlargement
of the time available to timely file a Notice of Appeal.
III. CONCLUSION
For the reasons stated in this memorandum, Plaintiff Jingping Xu’s Motion for Extension
of Time to File a Notice of Appeal (Doc. No. 76) is GRANTED. Ms. Xu shall file her Notice of
Appeal no later than December 2, 2013.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the twenty-seventh day of November, 2013.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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