Free Order on Motion for Extension of Time - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaint iff has filed a M otion for Extension of Time (Doc. #52) that asks the Court to extend his time for appeal. Defendants oppose the motion (Doc. #53). T his Court granted summary judgment in favor of Defendants on December 28, 2004. See Doc. #47. A judgment reflecting t he Court's ruling was entered on the same date. See Benjamin Scovel, Plaintiff, v. Terry L. Stewart, et al., Defendants. _____________________________) ) ) ) ) ) ) ) ) ) CV 02-2061 PHX DGC (JI) ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Doc. #48. Plaintiff filed a notice of ap peal on February 1, 2005. See Doc. #49. Because the notice of appeal was filed more than 30 days after the judgment, Plaintiff's appeal was dismissed by the Ninth Circuit for lack of jurisdiction. See Doc. #51. In opposing dismissal of his appeal, Plaintiff argued before the Ninth Circuit t hat he mailed his notice of appeal on January 28, 2005, believing that Rule 6(a) gave him t hree additional days within which to file the notice and making t he las t day for filing January 31, 2005. In the present motion, Plaintiff claims that he mailed t he not ice of appeal on January 26, 2005, but that it was not postmarked until received in Phoenix on February 1, 2005. Extensions of the time for appeal are governed by Rule 4 of the Federal Rules of Appellate Procedure. Pursuant to Rule 4(a)(5)(A), a party may obt ain an extension of the time for app eal if t he p arty requests such an extension within the 30-day appeal period or within Case 2:02-cv-02061-DGC-JRI Document 54 Filed 08/04/2005 Page 1 of 2

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30 days after expiration of the appeal period, provided the party shows excusable neglect or good cause. P laint iff does not qualify for relief under this provision because his request was not made during the original appeal period or within 30 days after its expiration. Rule 4(a)(6) permits the district court to reopen the time for appeal within 180 days of judgment if the party seeking to appeal did not receive notice of the district court 's judgment. Plaintiff does not claim that he failed to receive notice of the judgment in this case, and his prior notice of appeal demonstrates otherwise. Defendants sugges t that Plaintiff's motion is properly considered under Rule 60(b) of the Federal Rules of Civil Procedure. Courts generally hold, however, that Rule 60(b) does not provide a proper means for ext ending the time for appeal. See Wright, M iller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3950.3 at 147& n.16. Plaintiff argues that t he t ime for appeal may be enlarged under Rule 6(b)(2) of the Federal Rules of Civil P rocedure. By its terms, however, this rule applies only to an act

required "by these rules or by a notice given thereunder or by order of court . . . ." This provision clearly applies to acts required by the Federal Rules of Civil Procedure. Because the time for appeal is established by the Federal Rules of Appellate Procedure, Rule 4 of those rules governs. As seen above, Plaintiff does not qualify for relief under Rule 4 of the Federal Rules of Appellate Procedure. IT IS HEREBY ORDERED that Plaintiff's M ot ion for Extension of Time (Doc. #52) is denied. DATED this 4th day of August, 2005.

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