Koziol v. King

Second Circuit

Koziol v. King

667 F. App'x 331

CourtCourt of Appeals for the Second Circuit

DecidedJuly 7, 2016

Docket15-2819

StatusUnpublished

This text of 667 F. App'x 331 (Koziol v. King) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Koziol v. King, 667 F. App'x 331 (2d Cir. 2016).

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Opinion

SUMMARY ORDER

Appellant Leon R. Koziol, pro se, appeals from an August 10, 2015 order of the United States District Court for Northern District of New York (Sharpe, C.J.) denying his motion for an extension of time to file a notice of appeal under-Federal Rule of Appellate Procedure (“FRAP”) 4(a)(5). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the arguments on appeal.

We review the denial of a motion for an extension of time under FRAP 4(a)(5) for abuse of discretion. In re Johns-Manville Corp., 476 F.3d 118, 124 (2d Cir. 2007). Under this standard, a district court’s decision “cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion that it reached upon a weighing of the relevant factors.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 362 (2d Cir. 2003) (internal citation and quotation marks omitted).

FRAP 4(a)(5) gives the district court discretion to extend the time to file a notice of appeal upon a shovraig of “excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(ii). In deciding whether neglect is excusable, courts focus on “ ‘the reason for the delay, including whether it was within the reasonable control of the mov-ant....’” Silivanch, 333 F.3d at 366 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).

Our review of the district court decision does not result in a “definite and firm conviction” that it “committed a clear error of judgment in the conclusion that it reached upon a weighing of the relevant factors.” Id. at 362 (internal quotation marks omitted). The district court applied the correct test and reasonably concluded that Appellant failed to demonstrate excus *333 able neglect or good cause because the stated reasons for the delay were entirely within his control. See id. at 366. Because the district court’s determination falls within the range of permissible decisions, it did not abuse its discretion in denying Appellant’s FRAP 4(a)(5) motion.

We have considered all of Appellant’s arguments and find them to be without merit. Accordingly, the order of the district court is AFFIRMED.

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SUMMARY ORDER

Appellant Leon R. Koziol, pro se, appeals from an August 10, 2015 order of the United States District Court for Northern District of New York (Sharpe, C.J.) denying his motion for an extension of time to file a notice of appeal under-Federal Rule of Appellate Procedure (“FRAP”) 4(a)(5). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the arguments on appeal.

We review the denial of a motion for an extension of time under FRAP 4(a)(5) for abuse of discretion. In re Johns-Manville Corp., 476 F.3d 118, 124 (2d Cir. 2007). Under this standard, a district court’s decision “cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion that it reached upon a weighing of the relevant factors.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 362 (2d Cir. 2003) (internal citation and quotation marks omitted).

FRAP 4(a)(5) gives the district court discretion to extend the time to file a notice of appeal upon a shovraig of “excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(ii). In deciding whether neglect is excusable, courts focus on “ ‘the reason for the delay, including whether it was within the reasonable control of the mov-ant....’” Silivanch, 333 F.3d at 366 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).

Our review of the district court decision does not result in a “definite and firm conviction” that it “committed a clear error of judgment in the conclusion that it reached upon a weighing of the relevant factors.” Id. at 362 (internal quotation marks omitted). The district court applied the correct test and reasonably concluded that Appellant failed to demonstrate excus *333 able neglect or good cause because the stated reasons for the delay were entirely within his control. See id. at 366. Because the district court’s determination falls within the range of permissible decisions, it did not abuse its discretion in denying Appellant’s FRAP 4(a)(5) motion.

We have considered all of Appellant’s arguments and find them to be without merit. Accordingly, the order of the district court is AFFIRMED.

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667 F. App'x 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koziol-v-king-ca2-2016.

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