United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE.
matter has been opened to the Court by Petitioner's
filing of a Motion to Move, Answer, or Otherwise Reply.
(See ECF No. 15.) The Court construes
Petitioner's filing as a Motion for Extension of Time to
File a Notice of Appeal pursuant to Federal Rule of Appellate
Procedure 4(a)(5). (See ECF No. 14-2 at 1.) For the
reasons explained below, the Court will grant the motion.
Court recounts only the facts necessary to resolve the
instant motion. On December 12, 2018, this Court issued an
opinion and separate order denying Petitioner's petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(See ECF Nos. 12, 13.) On January 31, 2019,
Petitioner placed his Notice of Appeal and Motion for
Extension of Time to File a Notice of Appeal in the prison
mail to be sent to the United States Court of Appeals for the
Third Circuit. (See ECF No. 15 at 3; see
also ECF No. 14-2 at 1.) Petitioner's notice and
motion were received by the Third Circuit on February 7,
2019. (See ECF Nos. 14, 14-1, 14-2.) However,
Petitioner's notice and motion were improperly filed, and
should have been addressed to the District Court. Fed. R.
App. P. 3(a)(1). Upon receiving Petitioner's filings, the
Third Court forwarded Petitioner's submissions to this
Court for disposition on February 13, 2019. (See ECF
No. 14-2.) This Court now addresses Petitioner's motion
for an extension of time.
civil case, with certain exceptions not applicable here, the
notice of appeal required by Fed. R. App. P. 3 must be filed
with the district clerk within thirty (30) days after entry
of the judgment or order appealed from. See Fed. R.
App. P. 4(a)(1). “[T]he timely filing of a notice of
appeal in a civil case is a jurisdictional
requirement.” See Bowles v. Russell, 551 U.S.
205, 213 (2007). “[W]hen an appeal is taken beyond the
time set out in the Rule, an appellate court is without
jurisdiction to entertain and decide it.” Id.
instant case, this Court issued an opinion and order denying
Petitioner's habeas action on December 12, 2018.
(See ECF Nos. 12, 13). Petitioner stated that he
received the opinion and order on or about that same day.
(See ECF No. 15 at 2). Accordingly, Petitioner's
Notice of Appeal would have been timely filed if it had been
mailed within thirty (30) days of the order - January 11,
2019. As Petitioner's Notice of Appeal was not filed
until January 31, 2019, Petitioner's notice was twenty
(20) days late.
petitioner may, however, request to extend the time to file a
notice of appeal pursuant to Fed. R. App. P. 4(a)(5).
“Rule 4(a)(5)(A) states, ‘[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 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.'”
Allen v. Vaughn, 298 Fed.Appx. 130, 133 (3d Cir.
2008) (citing Fed. R. App. P. 4(a)(5)(A)). “No
extension under this Rule 4(a)(5) may exceed 30 days after
the prescribed time or 14 days after the date when the order
granting the motion is entered, whichever is later.”
Fed. R. App. P. 4(a)(5)(C).
Petitioner's Notice of Appeal and motion were submitted
to the Third Circuit on January 31, 2019, within the thirty
(30) day time period prescribed by Fed. R. App. P. 4(a)(5) to
file for an extension. (See ECF No. 14-2 at 1.) From
Petitioner's certification, it appears that once he
received the opinion and order from this Court on December
12, 2018, he made diligent efforts to visit the law library
and to meet with the paralegal who was assisting him with his
case. (See ECF No. 15 at 2.) “I put in
multiple slips to get to the law library to get with the
paralegal who was assisting me and it took weeks for me to
get there.” (Id.) Petitioner further added
that he was unaware of the filing deadlines for a Notice of
Appeal and by the time that he was finally able to visit the
law library and meet with the paralegal, he was already
“almost out of time.” (See id.) Upon
meeting with the paralegal, the paralegal allegedly indicated
that he would file the Notice of Appeal on Petitioner's
behalf. (See id.) Ultimately, however, the paralegal
was not able to file the Notice of Appeal, which Petitioner
alleges resulted in his notice being untimely. (See
Id. at 2.) Thus, the primary issue before this Court is
whether Petitioner's late submission constitutes
qualify for an extension of time under the excusable neglect
component of Fed. R. App. P. 4(a)(5)(ii), a litigant must
assert facts meeting the considerations stated in
Ragguette. See Ragguette, 691 F.3d at
324-26 (applying Pioneer Investment Serv. Co. v.
Brunswick Assoc. Limited Partnership, 507 U.S. 380
(1993), and Consol. Freightways Corp. of Del. v.
Larson, 827 F.2d 916 (3d Cir. 1987)). In
Ragguette, the United States Court of Appeals for
the Third Circuit listed the following factors to be
considered by the Court in analyzing excusable neglect:
(1) whether the inadvertence reflects professional
incompetence such as ignorance of the rules of procedure,
Campbell v. Bowlin, 724 F.2d 484 (5th Cir. 1984)
(failure to read rules of procedure not excusable); (2)
whether the asserted inadvertence reflects an easily
manufactured excuse incapable of verification by the court,
Airline Pilots v. Executive Airlines, Inc., 569 F.2d
1174 (1st Cir. 1978) (mistake in diarying counsel's
calendar not excusable); (3) whether the tardiness results
from counsel's failure to provide for a readily
foreseeable consequence, United States v. Commonwealth of
Virginia, 508 F.Supp. 187 (E.D. Va. 1981) (failure to
arrange coverage during attorney's vacation which
encompassed end of appeal period not excusable); (4) whether
the inadvertence reflects a complete lack of diligence,
Reinsurance Co. of America, Inc. v. Administratia,
808 F.2d 1249 (7th Cir. 1987); or (5) whether the court is
satisfied that the inadvertence resulted despite
counsel's substantial good faith efforts toward
Id. at 325-26 (citing Larson, 827 F.2d at
Pioneer, the Supreme Court held that the analysis
should be an equitable one and suggested the following
factors: “the danger of prejudice to the [non-movant],
the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it
was within the reasonable control of the movant, and whether
the movant acted in good faith.” 507 U.S. at 395.
the Court finds that the Ragguette and
Pioneer factors weigh in favor of granting
Petitioner's motion for an extension of time. Petitioner
is proceeding pro se without the assistance of an attorney;
as such, his lack of awareness of the time limit to file a
Notice of Appeal and his inability to access the law library
in a timely manner does not reflect professional
incompetence. Nor does his late filing suggest that
Petitioner was completely ignorant of the rules of procedure,
as Petitioner knew that he would be subject to a time
deadline to file his appeal and he requested to visit the law
library numerous times until he was successful. Moreover,
Petitioner's efforts to visit the library and meet with
the paralegal demonstrate his reasonable diligence in
attempting to timely file his appeal.
Court also finds that the twenty (20) day delay in filing the
notice of appeal is unlikely to prejudice Respondent. The
length of the delay is de minimis, and it appears that
Petitioner acted in good faith. For these reasons, the Court
will grant Petitioner's ...