O'Connor v. Sand Canyon Corp. et al

Filing 45

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on April 28, 2015. (sfc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
JANIS O’CONNOR,

CASE NO. 6:14-cv-00024
Plaintiff,

MEMORANDUM OPINION

v.
SAND CANYON CORPORATION, ET AL.,

JUDGE NORMAN K. MOON

Defendants.

This matter is before me on pro se Plaintiff Janis O’Connor’s (“Plaintiff”) Motion for
Extension of Time to File Notice of Appeal (docket no. 44). Defendants have not opposed
Plaintiff’s motion, and for the reasons stated herein, I will grant it.
I. BACKGROUND
Plaintiff initiated this action in Appomattox County Circuit Court on March 29, 2013,
seeking to have the foreclosure sale of her home set aside or declared void. On July 7, 2014,
Defendants removed the case to this Court on the basis of federal question jurisdiction. One
week later, Defendants moved to dismiss for failure to state a claim, and after several hearings on
Defendants’ motion, I dismissed this action with prejudice on January 16, 2015.
On the same day, the Deputy Clerk attempted to mail copies of my order and
memorandum opinion to Plaintiff. The mail, however, was returned as undeliverable, and on
February 12, 2015, the Deputy Clerk obtained Plaintiff’s e-mail address and sent the documents
electronically. After receiving my decision on February 12, 2015, Plaintiff alleges that she
immediately mailed her notice from Waterford, Virginia, to this Court “by first class, certified

mail, [with] restricted delivery to the clerk.” Pl.’s M. for Extension of Time 2. Six days later,
Plaintiff’s notice of appeal arrived in this Court and was promptly docketed.
II. DISCUSSION
Notice of appeal in a civil suit must be filed within thirty days of the entry of judgment.
Fed. R. App. P. 4(a)(1). If a party moves for an extension of time, the time to file a notice of
appeal may be extended by up to thirty days upon a showing of good cause or excusable neglect.
Fed. R. App. P. 4(a)(5)(A)(ii). Here, Plaintiff filed her notice of appeal one day outside of the
initial thirty-day window.

Accordingly, Plaintiff must demonstrate either good cause or

excusable neglect in order to be granted an extension to timely file her notice of appeal.
A. Excusable Neglect or Good Cause
The advisory committee to the 2002 amendments of the Federal Rules of Appellate
Procedure differentiated between “excusable neglect” and “good cause” as follows:
[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 . . . 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(a)(5)(A)(ii), Advisory Committee Notes to the 2002 Amendments. Here, the
“good cause” standard applies, as it does not appear Plaintiff was at fault in failing to file her
notice of appeal within the initial thirty-day window. 1 Accordingly, I must next determine
whether “good cause” excuses Plaintiff’s failure to file her notice of appeal in a timely manner.

Four weeks after my decision, Plaintiff received copies of my order and opinion, and immediately after
receiving those documents, she mailed her notice of appeal “by first class, certified mail, [with] restricted
delivery to the clerk.” Pl.’s M. for Extension of Time 2. Plaintiff would have opted for overnight
delivery, but at the time of mailing, she was “out of work and lacked the requisite funds ($25)” to afford
such an option. Id. at 3. Under such circumstances, it does not appear Plaintiff was at fault in failing to
file her notice of appeal within thirty days of judgment, and I will therefore apply the “good cause”
standard. See also Fed. R. App. P. 4(a)(5)(A)(ii), Advisory Committee Notes to the 2002 Amendments
(noting that the good cause standard applies where “the Postal Service fails to deliver a notice of appeal”).

1

In determining whether Plaintiff has shown good cause, district courts are to consider
whether “something beyond the [movant’s] control” prevented her from filing within the initial
thirty-day window. Dalenko v. News and Observer Pub. Co., 447 F. App’x 490, 491 (4th Cir.
2011) (citing United States v. Torres, 372 F.3d 1159, 1161 n.1 (10th Cir. 2004)). Notably, courts
have found “good cause” where the movant attempted to deliver a notice of appeal at such a time
and in such a manner that, under normal circumstances, the district court would have received it
in a timely fashion. Scarpa v. Murphy, 782 F.2d 300, 301 (1st Cir. 1986) (noting that a district
court should have found good cause where “the Post Office [took] more than five days . . . to
transmit an adequately addressed letter three miles,” and counsel had no reason “to think that
more [time] might be needed.”); Right v. Deyton, 757 F.2d 1253, 1255-56 (11th Cir. 1985)
(“[T]he district court should determine when the document was mailed and whether, in the
ordinary course of events, the clerk would have received the letter by the applicable filing
deadline.”). Here, Plaintiff sent her notice of appeal by first-class mail on February 12, 2015.
Traveling in state, it then arrived one day late on February 18, 2015. Under such circumstances,
it appears Plaintiff was making every effort to file her notice of appeal in a timely manner, but
she was prevented from doing so due to a delay in the mail. Accordingly, I find that “good
cause” excuses Plaintiff’s failure to file her notice of appeal within thirty days of judgment.
III. CONCLUSION
For the foregoing reasons, I find that good cause justifies Plaintiff’s failure to file within
thirty days of judgment, and I will therefore grant Plaintiff’s Motion for Extension of Time.
An appropriate Order follows.
28th
Entered this ________ day of April, 2015.