Curtis 260104 v. Shinn

Opinion

1 WO 2 3 4 5

9 David W. Curtis, Jr., No. CV-19-04374-PHX-DGC (JZB)

10 Petitioner, ORDER

11 v.

12 David Shinn, Director of the Arizona Department of Corrections; and Attorney 13 General of the State of Arizona,

14 Respondents. 15 16 Petitioner David W. Curtis has filed a motion to enlarge the time for filing a notice 17 of appeal. Doc. 73. Because this is a civil case, his motion is governed by Federal Rule of 18 Appellate Procedure 4(a)(5). 19 Petitioner filed the motion within 30 days of the Court’s ruling on his motion for 20 reconsideration of the order denying his motion to compel. See Docs. 52, 64, 72, 73.1 An 21 extension of the appeal time for issues raised in the motion to compel is governed by 22 Federal Rule of Appellate Procedure 4(a)(5)(A)(i) and may be considered ex parte (Rule

23 1 Petitioner asserts that his motion for reconsideration is best described as a motion 24 to amend or make additional findings under Rule 52(b) of the Federal Rules of Civil Procedure. Doc. 73 at 1-2. Regardless of whether the motion is construed as a motion 25 under Rule 52(b), Rule 59(e), or Rule 60(b), Petitioner’s time for appeal of the issues raised in his motion to compel runs from the Court’s January 7, 2022 ruling on the motion for 26 reconsideration (Doc. 72). See Fed. R. App. P. 4(a)(4)(A)(ii), (iv), (vi); see also Vantage Mobility Int’l LLC v. Kersey Mobility LLC, 836 F. App’x 496, 498 n.2 (9th Cir. 2020) 27 (“That VMI labeled its motion for reconsideration as brought under Rule 60 and the local rule is inconsequential because ‘nomenclature is not controlling.’”) (citation omitted). 28 Absent an extension of time, Plaintiff would have until February 7, 2022 to file an appeal in this regard. See Fed. R. App. P. 4(a)(1)(a), (4)(A); Fed. R. Civ. P. 6(a)(1)(C). 1|| 4(a)(5)(B)). The Court will grant the motion in part. Petitioner’s time to appeal issues 2|| addressed in his motion to compel is extended to March 9, 2022 (30 days from February 7). 3|| See Fed. R. App. P. 4(a)(5)(C); Momoh v. Valenzuela, No. LA CV 09-06770-VBF-CW, 2015 WL 13037530, at *2 (C.D. Cal. Apr. 13, 2015) (noting that Rule 4(a)(5)(C) 5 || “authorizes an extension of up to thirty days beyond the original time for filing, or up to || fourteen days from entry of the extension order, whichever is later”’); Strauss v. Cty. of Los 7\| Angeles, No. 21-56123, 2021 WL 6427934, at *1 (9th Cir. Dec. 8, 2021) (same). 8 The motion for reconsideration (Doc. 72) did not address the Court’s ruling on 9|| Petitioner’s habeas petition, which was entered on October 6, 2021 (Doc. 65). Because || his motion to enlarge the time for appeal was filed more than 30 days after the ruling on 11 || his habeas petition, it is governed by Rule 4(a)(5)(A)(i), cannot be considered ex parte || (Rule 4(a)(5)(B)), can be granted only upon a showing of excusable neglect or good cause 13 || (Rule 4(a)(5)(A)Gi)), and can extend the time for appeal only 14 days beyond the date of any order granting the extension (Rule 4(a)(5)(C)). Respondents shall have until || February 9, 2022, to file a response to the motion, if any, and Petitioner shall have until February 18, 2022, to file a reply. The Court will then rule on Petitioner’s request for an 17 || extension of the time to appeal the denial of his habeas petition. 18 This order does not change the fact that the Court has denied Petitioner a certificate || of appealability with respect to issues raised in his habeas petition. Doc. 65 at 13. The 20 || Court understands from Petitioner’s motion that he is seeking such a certificate from the 21 || Court of Appeals. Doc. 73 at 1. 22 Dated this 2nd day of February, 2022. 23 Ds aul 6 05 Dank 0 Cnr phtl 26 David G. Campbell Senior United States District Judge 28

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