Austin v. ABC Legal

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GEORGE JARVIS AUSTIN, Case No. 21-cv-09076-SI

8 Plaintiff, ORDER DENYING MOTION FOR 9 v. EXTENSION OF TIME

10 ABC LEGAL, Re: Dkt. Nos. 90, 91 11 Defendant.

12 13 The Court entered final judgment in the above-captioned case on May 31, 2022. Dkt. No. 14 89. Before the Court is plaintiff’s motion for an extension of time to file a notice of appeal beyond 15 the 30-day period prescribed by Federal Rule of Appellate Procedure 4(a)(1)(A). Dkt. Nos. 90, 91 16 (plaintiff’s motions). Plaintiff’s motion states, in full:

17 Plaintiff, Mr. George Jarvis Austin, notes the lower court’s errors in judgment, and moves 18 for additional time to Appeal due to temporary constraints on this portion of my budget. Mr. Austin also realized a potential need for a bit more time around the holidays and moves for 19 a slightly later date in December [2022] instead of November. 20 Dkt. No. 91 (the motion at Dkt. No. 90 contains only the first sentence from the above passage). 21 F.R.A.P. 4(a)(5)(A) permits district courts to extend the time to file a notice of appeal beyond 22 the original 30 day post-judgment period if: “(i) a party so moves no later than 30 days after the time 23 prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during 24 the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect 25 or good cause.” F.R.A.P 4(a)(5)(A). Although the rule “refers to both ‘excusable neglect’ and 26 ‘good cause,’ an extension for good cause is only applicable where a motion is filed before the 27 expiration of the original appeal period.” Thorn v. BAE Sys. Hawaii Shipyards, Inc., No. CIV 08- 1 Corp., 680 F.2d 1300, 1301 (9th Cir.1982)).! “[C]ourts have found that difficulties ... such as prison 2 || transfers, confinement in segregated housing units, and/or limited access to legal materials, 3 || especially when considered in light of their pro se status, constitute ‘good cause’ for purposes of 4 |} Rule 4(a)(5).” Momoh v. Valenzuela, No. LACV0906770VBFCW, 2015 WL 13037530, at *2 (C.D. 5 Cal. Apr. 13, 2015) (quoting Levesque v. Clinton County, 2014 WL 2090803, *2 (N.D.N.Y. May 6 19, 2014)). 7 Plaintiff filed his motion before the expiration of the original appeal period. However, the 8 || motion fails to show that “temporary constrains on this portion of [plaintiff's] budget” or the 9 demands of the holiday season constitute verifiable or plausible good cause for extending the filing 10 || deadline by six months to December 2022. See Grow v. Garcia, 459 F. App’x 678, 679 (9th Cir. 11 2011) (district court did not abuse its discretion when concluding that “counsel’s last-minute excuse 12 || regarding computer problems was manufactured, unverifiable, or implausible, and that it failed to

13 establish either good cause based on events beyond counsel’s control or otherwise constitute

14 || excusable neglect.”).

15 The motion for an extension of time is DENIED. Notice of appeal is due no later than June 16 |] 30,2022.

= 17

18 IT IS SO ORDERED. 19 || Dated: June 7, 2022 Sate ee 20 oo SUSAN ILLSTON United States District Judge 22 23 24 25 26 ' Conversely, “excusable neglect” is retrospective and looks to: “(1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) 27 . : the reason for the delay, including whether it was within the reasonable control of the movant, and 2g || (4) whether the moving party’s conduct was in good faith.” Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004).