Boothe v. Deseret Mutual Benefit Administrators et al
MEMORANDUM DECISION AND ORDER denying 56 Motion for Extension of Time to File Notice of Appeal. Signed by Judge David Nuffer on 11/13/17 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
DESERET MUTUAL BENEFIT
HEALTHCARE EMPLOYEE BENEFITS
MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
EXTENSION OF TIME TO FILE
NOTICE OF APPEAL
Case No. 1:16-cv-00008-DN
District Judge David Nuffer
Plaintiff has appealed1 the Judgment filed Wednesday June 27, 2017, granting
Defendants’ Motion for Summary Judgment.2 The notice of appeal was filed on Friday July 28,
2017.3 Plaintiff filed a Motion for Extension of Time to File Notice of Appeal (“Motion”) on
August 26, 2017.4 The Tenth Circuit Court of Appeals tolled the appeal pending the district
court’s ruling on the Motion.5
Under Fed. R. App. P. 4(b)(4), a showing of excusable neglect or good cause permits the
district court to extend the time to appeal for an additional 30 days.
In the Motion, Plaintiff argues that excusable neglect or good cause exists because (1) her
counsel erroneously calculated the deadline to file an appeal; (2) after seeking funds and
Notice of Appeal, Docket No. 48, filed on July 28, 2017. Amended Notice of Appeal, Docket No. 51, filed July 28,
Docket No. 47, filed on June 27, 2017. Memorandum Decision and Order, Docket No. 46, filed June 27, 2017.
Notice of Appeal.
Docket No. 56.
Order of the Tenth Circuit Court of Appeals, Docket No. 57, filed August 30, 2017.
opinions on the merits of an appeal, she decided to proceed in forma pauperis (“IFP”); (3) the
length of the delay was one day; and (4) “given the foregoing, it certainly cannot be said that
Plaintiff is acting in bad faith.”6 Defendants responded that the neglect of Plaintiff and her
counsel is not excusable because the fault for the untimely filing was within their control and
they had the ability to timely perform their obligations.7
Because the late filing of Plaintiff’s appeal was entirely within her control or control of
her counsel, Plaintiff cannot establish excusable neglect or good cause for the untimely filing of
her notice of appeal. Therefore, the time for the filing of the appeal must not be extended.
Rule 4(b)(4) of the Federal Rules of Appellate Procedure provides that:
Upon a finding of excusable neglect or good cause, the district court may . . .
extend the time to file a notice of appeal for a period not to exceed 30 days from
the expiration of the time otherwise prescribed by this Rule 4(b).
Plaintiff offers the same support to show excusable neglect and good cause exist. Excusable
neglect and good cause will be addressed in turn.
“[T]he determination whether a party’s neglect is excusable ‘is at bottom an equitable
one, taking account of all relevant circumstances surrounding the party’s omission.’”8 “Such
circumstances include ‘ the danger of prejudice to the [nonmoving party],  the length of the
delay and its potential impact on judicial proceedings,  the reason for the delay, including
Motion at 2-5.
Defendants’ Opposition to Motion for Extension of Time to File Notice of Appeal (Defendants’ Opposition”),
Docket No. 58, at 5-6, filed September 11, 2017..
United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004) (quoting Pioneer Inv. Servs. Co. v. Brunsick Assocs.
Ltd. P’ship, 507 U.S. 380, 395 (1993)).
whether it was within the reasonable control of the movant, and  whether the movant acted in
Danger of prejudice to Defendants. Plaintiffs argue that Defendants cannot be
prejudiced by a one day delay in filing the Appeal.10 In Defendants’ Opposition, Defendants
claim Plaintiff’s delay resulted in additional attorneys’ fees addressing the Motion as well as
defending the appeal.11 If Plaintiff’s appeal is authorized, the attorneys’ fees incurred by
Defendant in defending the appeal appear to be slight.
Length of delay. The length of the delay and its potential impact on judicial proceedings
is also slight. Rule 4(b)(4) permits a 30-day extension of the deadline for filing a notice of
appeal.12 Plaintiff filed an appeal on July 28, 2017, one day passed the deadline.13 Defendants
contend that although Plaintiff missed the deadline by only one day, Defendants notified Plaintiff
of the error 12 days after the missed deadline and Plaintiff waited additional 18 days to file the
Motion.14 Defendants state that a court may take into account whether the attorney promptly
corrected the error after discovering the mistake.15 Because the delay was one day, the length of
delay and impact on judicial proceedings would appear to be minimal.
Reason for the delay. “‘[F]ault in the delay remains a very important factor—perhaps
the most important single factor—in determining whether neglect is excusable.’”16
Id. (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395).
Motion at 4.
Opposition at 5.
FED. R. APP. P. 4(b)(4).
Opposition at 5.
Id. See Jennings v. Rivers, 394 F.3d 850, 857 (10th Cir. 2005).
Torres, 372 F.3d at 1163 (quoting City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th
Plaintiff’s counsel states the reason for the delay was due to the fact she “erroneously
calculated and set the deadline of July 28, 2017.”17 Additionally, Plaintiff’s counsel argues the
reason for the delay was due to Plaintiff seeking funds to hire an attorney to file her appeal,
seeking differing opinions as to whether an appeal would be worthwhile, and Plaintiff’s decision
to proceed IFP.18 In her Motion, Plaintiff contends filing IFP requires additional steps, including
hand delivering documents to the court, which takes additional time and lead to her untimely
The time to appeal should not be extended in the “absence of circumstances that are
unique and extraordinary.”20 There is no dispute that requesting to proceed IFP requires
additional steps than proceeding without such a request. However, Plaintiff did not offer reasons
why requesting to proceed IFP was unique or extraordinary and could not be performed within
the 30 day appeal period. Additionally, seeking additional legal opinions is typical, not
extraordinary, and is expected to be completed within the 30 day appeal period.21 Furthermore,
nothing prevents Plaintiff from timely filing the notice of appeal and later dismissing the appeal
after evaluating the merits of the appeal with additional counsel. The reasons Plaintiff states for
the delay are neither unique or extraordinary and are within the reasonable control of the
Motion at 2.
Id. at 4-5.
Id. at 5.
Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004), quoting Gooch v. Skelly Oil Co., 493 F.2d 366, 370
(10th Cir. 1974).
Bishop at 1206.
Good faith. Plaintiff contends that she did not act in bad faith.22 Defendants claim there
is no evidence that Plaintiff acted in good or bad faith and thus this factor should be neutral.23
Plaintiff claims because she did not act in bad faith, she must have acted in good faith, but she
has provided no evidence to support that claim.
For the reasons stated above, Plaintiff has failed to show excusable neglect.
Plaintiff argues good cause based on the same reasons set forth in her argument for
excusable neglect. Plaintiff’s counsel calendared the incorrect deadline, Plaintiff sought
additional funds to hire an attorney, Plaintiff was seeking outside attorney opinions on the merit
of the appeal, and her decision to proceed IFP. A finding that good causes exists is appropriate
“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.”24
Plaintiff’s counsel made a mistake in calculating the deadline and although unfortunate, had
control to timely file Plaintiff’s appeal. Additionally, Plaintiff had control to seek other
attorneys’ opinions on the merits and file IFP within the appeal deadline. Since there are no
forces beyond the control of Plaintiff or Plaintiff’s counsel that prevent them from timely filing
an appeal, good cause has no applicability.
Plaintiff’s Motion demonstrates neither good cause nor excusable neglect.
Motion at 5.
Opposition at 6.
Bishop, quoting Fed. R. App. P. (4)(a)(5) advisory committee’s note (2002 Amendments).
IT IS HEREBY ORDERED that because Plaintiff cannot establish excusable neglect or
good cause for the untimely filing of her notice of appeal, the time for the filing of his appeal
cannot be extended. For the reasons stated above, Plaintiff’s Motion25 is denied.
Signed this 13th day of November, 2017.
BY THE COURT
District Judge David Nuffer
Docket No. 56, filed August 26, 2017.
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