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Alsaifullah v. Carter

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


June 2, 2009

TALIB ALSAIFULLAH, PLAINTIFF,
v.
JUDGE WILLIAM CARTER, DEFENDANT.

The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

Presently before the Court is plaintiff's letter motion (Dkt. No. 28), dated May 11, 2009, requesting an extension of time to file a notice of appeal from a Judgment (Dkt. No. 25) entered February 23, 2009, dismissing the case in its entirety. The Clerk mailed the Judgment and Memorandum-Decision and Order (Dkt. No. 24) on February 23, 2009, to plaintiff at the most recent address in the record, which plaintiff had provided on April 2, 2007 (Dkt. No. 15). On April 22, 2009, plaintiff sent the Clerk a notice of change of address and requested copies of all court documents relative to the case (Dkt. No. 26). On April 24, 2009, the Clerk responded to plaintiff's request, enclosing a docket sheet and a page count for each entry and advising that he could purchase copies for $0.50 per page (Dkt. No. 27). By letter motion dated May 11, 2009 (filed by the Clerk on May 18, 2009) plaintiff made this request for an extension of time to file a notice of appeal (Dkt. No. 28).

Plaintiff had until 30 days after February 23, 2009, or until March 25, 2009, to file his notice of appeal. Fed. R. App. P. 4(a)(1)(A).*fn1 He had 30 more days, or until April 24, 2009, to move to extend the time to file the notice of appeal. Fed. R. App. P. 4(a)(5)(A)(i).*fn2 Even where, as here, these time periods have elapsed, the Court may reopen the time to appeal as follows:

(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced. Fed. R. App. P. 4(a)(6).

Plaintiff's May 11, 2009 letter requests the "right to appeal" because he "did not receive notice" under Fed. R. Civ. P. 77(d)(1), which requires that "[i]mmediately after entering an order or judgment, the clerk must serve notice of the entry... on each party who is not in default for failing to appear." Plaintiff does not inform the Court how, when, or where he received notice of the judgment. In view of plaintiff's pro se status, the Court deems his May 11, 2009 letter to be a motion to reopen the time to file a notice of appeal under Fed. R. App. P. 4(a)(6). The Court will accept any further papers from plaintiff in support of the motion submitted within 20 days from the date of this Memorandum-Decision and Order. If plaintiff submits further papers in support of the motion, he should include a proposed notice of appeal and two copies.*fn3 The Court will then accept any papers from defendant in opposition to the motion submitted within 15 days thereafter. The Court will not accept reply papers.

It is therefore

ORDERED that plaintiff's letter to the Court dated May 11, 2009 (Dkt. No. 28) is deemed to be a motion to reopen the time to file a notice of appeal under Fed. R. App. P. 4(a)(6); and it is further

ORDERED that the Court will accept from plaintiff any further papers (which should include a proposed notice of appeal and two copies) in support of the motion, submitted within 20 days from the date of this Memorandum-Decision and Order; the Court will then accept any papers from defendant in opposition to the motion, submitted within 15 days thereafter; and there will be no reply papers.

IT IS SO ORDERED.


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