Fuller et al v. Bartholomew et al
Filing
34
MEMORANDUM DECISION AND ORDER - granting 26 Motion to Reopen the Time for Filing Appeal.The time to file an appeal is reopened for 14 days from the date of thisOrder. Signed by Judge Ted Stewart on 4/17/14. (ss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFFS’
MOTION TO REOPEN TIME FOR
FILING APPEAL
DAVID AND RUTH M. FULLER,
Plaintiffs,
v.
BRENT H. BARTHOLOMEW, et al.,
Case No. 2:13-CV-375 TS
Defendants.
District Judge Ted Stewart
This matter is before the Court on Plaintiffs’ Motion to Reopen the Time for Filing
Appeal. The Court construes this Motion as one brought pursuant to Federal Rule of Appellate
Procedure 4(a)(6) and, for the reasons discussed below, will grant the Motion.
I. BACKGROUND
Plaintiffs filed this action on May 28, 2013. On October 21, 2013, the Court entered a
Memorandum Decision and Order granting Defendants’ Motions to Dismiss. Judgment was
entered on October 22, 2013.
Plaintiffs represent that they called the Court on March 10, 2014, to determine the status
of the case. Plaintiffs were then provided a copy of the Court’s October 21, 2013 Memorandum
Decision and Order on March 13, 2014. Plaintiffs assert that they did not receive notice of the
Court’s decision prior to this date, and there is no evidence to the contrary. On March 24, 2014,
Plaintiffs filed the instant Motion and filed a Notice of Appeal.
1
II. DISCUSSION
Federal Rule of Appellate Procedure 4(a)(6) provides:
The district court may reopen the time to file an appeal for a period of 14 days
after the date when its order to reopen is entered, but only if all the following
conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal
Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be
appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or
within 14 days after the moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
It is undisputed that the first two conditions are satisfied here. Thus, the issue becomes
whether Defendants will be prejudiced if the appeal period is reopened.
Defendants argue that they will be prejudiced if the appeal period is reopened.
Specifically, Defendants assert that they have an interest in the finality of the judgment and have
since moved on from this case. However, Defendants do not provide any specific explanation as
to how they would be prejudiced.
The Advisory Committee Notes explain that “[b]y ‘prejudice’ the Committee means
some adverse consequence other than the cost of having to oppose the appeal and encounter the
risk of reversal, consequences that are present in every appeal.”1 The Advisory Committee
Notes go on to explain that “[p]rejudice might arise, for example, if the appellee had taken some
action in reliance on the expiration of the normal time period for filing a notice of appeal.”2
In this case, the Court finds that Defendants have failed to show prejudice. The only
prejudice Defendants have alleged is the type of prejudice that is inherent in every appeal.
1
Fed. R. App. P. 4 advisory committee’s note.
2
Id.
2
According to the Advisory Committee Notes, such a showing is insufficient under the Rule.
Therefore, the Court finds that the conditions of Rule 6(a)(6) have been met.
Defendants also argue that the Court lacks jurisdiction to consider Plaintiffs’ Motion
because Plaintiffs filed a Notice of Appeal. However, the Court notes that the Tenth Circuit
Court of Appeals has abated the proceedings in that appeal “pending the district court’s ruling on
[Plaintiffs’] motion.”3
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion to Reopen the Time for Filing Appeal (Docket No.
26) is GRANTED. The time to file an appeal is reopened for 14 days from the date of this
Order. The Clerk of the Court is directed to transmit a copy of this Order, together with a copy
of any related docket entries, to the Tenth Circuit Court of Appeals.
DATED this 17th day of April, 2014.
BY THE COURT:
Ted Stewart
United States District Judge
3
Docket No. 31, at 1.
3
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