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DIRECTV, INC. v. PHILLIPS

United States District Court, E.D. New York


September 29, 2004.

DIRECTV, INC., Plaintiff,
v.
JOHN PHILLIPS, Defendant.

The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge

MEMORANDUM AND ORDER

On June 14, 2004, a default judgment was entered against the defendant in the amount of $10,000, plus attorney's fees and costs. (Docket Entry ("DE") #7). On July 22, 2004, the defendant filed a Notice of Appeal. (DE #8). In his Notice of Appeal, the defendant also moved for an extension of time to proceed pursuant to Fed.R. App. P. 4(a)(5).

Under Rule 4(a)(1), Federal Rules of Appellate Procedure, a notice of appeal in a civil case in which the United States is not a party must be filed within 30 days of entry of the judgment from which the appeal is taken. That requirement is jurisdictional and mandatory. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (internal quotes omitted).

  Although the Court of Appeals has no authority to extend the time for filing a notice of appeal, see, e.g., Fed.R. App. P. 26(b)(1), a district court does have the authority to do so pursuant to Fed.R. App. P. 4(a)(5), which provides:

(A) The district court may extend the time to file a notice of appeal if:
(i) a party makes no later than 30 days after the time prescribed by Rule 4(a) expires; and
  (ii) . . . that party shows excusable neglect or good cause. The defendant is pro se. He filed his notice of appeal and motion for an extension of time just 8 days after the time prescribed by Rule 4(a) expired, and well within the time prescribed by Rule 4(a)(5).

  In Campos v. LeFevre, 825 F.2d 671 (2d Cir. 1987), the Court directed the "district court clerk's offices [to] screen notices of appeal for timeliness and advise pro se litigants of the appropriateness of an extension motion. We further direct that district court clerks prepare a notice to be given to all litigants, whether or not they are pro se and whether they are plaintiffs or defendants, at the time when judgment is entered. The notice is to inform the litigants of the time limitations for filing a notice of appeal under Fed.R. App. P. 4 and of the necessity of filing a timely motion for extension within the thirty day extension period if the notice of appeal is untimely. 825 F.2d at 676 (emphasis mine). That direction did not require the clerk to notify the litigant that the motion for an extension of time must also show good cause or excusable neglect warranting that the motion be granted.

  The defendant's motion for an extension of time was prepared on the form provided by the Clerk of Court and made no showing of excusable neglect or of good cause simply because the notice did not require him to do so. His reliance on the form thus provided, in the view of this Court, is excusable neglect or good cause for the purpose of Fed.R. App. P. 4(a)(5)(A)(ii), and his motion for an extension of time is granted. See LeSane v. Hall's Security Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (pro se plaintiffs should be granted special leniency regarding procedural matters). The Clerk of Court is hereby advised to amend the notice required by Campos so that the litigant is advised of the necessity of showing excusable neglect or good cause in support of the motion for an extension of time.*fn1

  SO ORDERED.


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