Mora v. Burn and Plastic Hand Clinic

• Court: District Court, W.D. Washington
• Decided: March 4, 2024
• Docket: 2:23-cv-01008
• Status: Unknown

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 OLIVIA MORA, CASE NO. C23-1008JLR 11 Plaintiff, ORDER v. 12 BURN AND PLASTIC HAND 13 CLINIC, et al., 14 Defendants. 15 Pro se Plaintiff Olivia Mora brought this action against Defendants Burn and 16 Plastic Hand Clinic, Katherine Cannon, and Harborview Medical Center (collectively, 17 “Defendants”), raising disability discrimination and retaliation claims under Title III of 18 the Americans with Disabilities Act of 1990, the Washington Law Against 19 Discrimination, and the Rehabilitation Act of 1973, as well as state law claims for 20 negligence and intentional infliction of emotional distress. (Am. Compl. (Dkt. # 5) at 1, 21 4-18.) On December 5, 2023, the court dismissed Ms. Mora’s complaint with prejudice 22 1 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), concluding that she failed to state a claim 2 under federal law and declining to exercise supplemental jurisdiction over her state law

3 claims. (12/5/23 Order (Dkt. # 14) at 6-7; see also 10/30/23 Order (Dkt. # 12) at 10-11.) 4 Although the court entered judgment on December 6, 2023 (Judgment (Dkt. 5 # 15)), Ms. Mora did not file her notice of appeal until January 11, 2024 (NOA (Dkt. 6 # 16))—five days beyond the 30-day window allowed by Federal Rule of Appellate 7 Procedure 4(a)(1)(A). See Fed. R. App. P. 4(a)(1)(A). Attached to Ms. Mora’s notice of 8 appeal is a motion “to file late appeal in interest of justice.” (NOA at 3-6.1) On March 1,

9 2024, the Ninth Circuit Court of Appeals entered an order remanding the case to this 10 court “for the limited purpose of allowing [the] court to rule on [Ms. Mora]’s January 11, 11 2024 motion.” (CA9 Order (Dkt. # 18) at 1; see also Mot. (Dkt. # 19) (copy of Ms. 12 Mora’s motion and proposed order re-posted to the docket for clerical purposes).) For 13 the reasons explained below, the court GRANTS Ms. Mora’s motion to extend time.

14 Federal Rule of Appellate Procedure 4(a)(5) provides the district court with 15 discretion to extend the time to file a notice of appeal if the party moves for an extension 16 of time within thirty days after the time prescribed for filing a notice of appeal in Rule 17 4(a) and also demonstrates “excusable neglect or good cause.” Fed. R. App. P. 18 4(a)(5)(A). The court focuses its inquiry on excusable neglect. The Ninth Circuit has

19 held that, in analyzing whether a party’s neglect was excusable for purposes of Rule 4(a), 20 courts should apply the test articulated by the Supreme Court in Pioneer Investment 21

1 The court references the page numbers in the CM/ECF header when citing Ms. Mora’s 22 notice of appeal. 1 Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993). Pincay 2 v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc); Mendez v. Knowles, 556 F.3d

3 757, 764 (9th Cir. 2009). Under Pioneer, the court considers (1) “the danger of prejudice 4 to the [non-moving party]”; (2) “the length of the delay and its potential impact on 5 judicial proceedings”; (3) “the reason for the delay, including whether it was within the 6 reasonable control of the movant”; and (4) “whether the movant acted in good faith.” 7 Pioneer, 507 U.S. at 395. “[T]he clear trend since Pincay . . . is to afford the movant 8 more lenience when applying the Pioneer factors . . . .” In re Hawaiian Airlines, Inc.,

9 No. 08-0405 DAE-BMK, 2011 WL 1483923, at *3 (D. Haw. Apr. 18, 2011) (collecting 10 cases). 11 The first factor favors Ms. Mora. Defendants face no prejudice because they have 12 neither appeared nor been served with a copy of the complaint. (See generally Dkt.) The 13 second factor also favors Ms. Mora, as her delay in filing a notice of appeal just five days

14 after the deadline is minimal and has no impact on judicial proceedings aside from the 15 instant motion. With respect to the third factor, Ms. Mora argues her delay resulted from 16 a combination of factors outside of her control. She claims to have not received notice of 17 the final judgment until December 11, 2023, that her cognitive disability prevented her 18 from understanding the applicable deadline to file a notice of appeal, and that she hired a

19 “limited-scope attorney” to prepare her amended complaint, but her attorney failed to 20 advise her of the filing deadline. (Mot. at 1-2.) To begin, no attorney has appeared in 21 this case on behalf of Ms. Mora, who has proceeded pro se throughout this litigation. 22 (See generally Dkt.) As such, Ms. Mora bears sole responsibility to adhere to court rules 1 and deadlines in her case. The court is not persuaded by Ms. Mora’s attempt to shift 2 blame to an unnamed attorney. Furthermore, the court notes that Ms. Mora’s cognitive

3 disability has been diagnosed and documented since at least 1998, yet she has represented 4 herself pro se and timely filed a notice of appeal in at least one other case in this district 5 since then. See Supplement, Mora v. Ely, No. 12-2134JCC (W.D. Wash. Jan. 1, 2013), 6 Dkt. # 8 (September 8, 1998 letter addendum to case report and diagnosis, describing Ms. 7 Mora’s diagnoses of two learning disabilities); id., Dkt. # 27 (timely notice of appeal 8 filed on November 15, 2013). Ms. Mora does not adequately explain how her cognitive

9 disability prevented her from complying with court rules on this particular occasion 10 where she successfully complied with those same rules on a prior occasion. The court 11 concludes that, at most, the third factor is neutral. Finally, the fourth factor favors Ms. 12 Mora. The court sees no basis for a finding of bad faith based on this record. 13 Accordingly, three of the four Pioneer factors favor Ms. Mora. The court

14 therefore GRANTS Ms. Mora’s motion to extend time to file a notice of appeal (Dkt. 15 # 19) based on excusable neglect. Fed. R. App. P. 4(a)(5)(A)(ii). The Clerk is 16 DIRECTED to serve a copy of this order upon the Ninth Circuit Court of Appeals. 17 Dated this 4th day of March, 2024. A 18 JAMES L. ROBART 19 United States District Judge 20 21 22