United States District Court, E.D. New York
September 29, 2004.
DIRECTV, INC., Plaintiff,
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
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