The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Michael Sussman commenced this lawsuit alleging that Defendants improperly withheld records requested pursuant to the Freedom of Information Act and the Privacy Act. Presently before the Court is Plaintiff's motion requesting an extension of time to file a notice of appeal from the December 2, 2008 judgment in favor of Defendants. For the reasons set forth below, the motion is denied.
The following facts are undisputed unless otherwise noted.
Familiarity with the Court's prior decisions in this matter is presumed, and the facts are not reiterated here. Briefly stated, Plaintiff filed this action on July 23, 2003 bringing seventy-one separate claims under the Freedom of Information Act and Privacy Act. On December 2, 2008 judgment was entered dismissing all of Plaintiff's claims. In a letter dated February 16, 2009, fourteen days after the time to file notice of appeal had elapsed, Plaintiff requested that the Court extend the time in which notice could be filed pursuant to Fed. R. App. P. 4(a)(5).
Plaintiff's application asserts that his failure to file a notice of appeal within the required number of days constitutes excusable neglect. In support of this assertion he states:
The time for the notice of appeal expired on or about January 31, 2009, since the period to file the notice is sixty (60) days because the United States is a party.
I believed that I had filed the notice in this case as my internal calendar had the event marked as completed on January 20, 2009.
However, I discovered that the notice of appeal was not received by the Court despite my having prepared it. I cannot conclusively state that the notice of appeal was sent as it was prepared using regular mail.
I believe that, in this case, my failure to file the notice in a timely manner constitutes excusable neglect since the opposing party will not be prejudiced by the delay in filing the Notice of Appeal and because I did prepare and believe I mailed the Notice, despite the Court not receiving it. (Dkt. No. 104.) Plaintiff's application did not include a copy of the notice of appeal he had prepared. According to Plaintiff, he did not file the notice with his application "because he did not want to deprive this Court of jurisdiction." On February 27, 2009, an undated notice of appeal was filed. In the meantime, the Court had entered an Order setting forth a briefing schedule for the application, including an opportunity for Plaintiff to reply to any opposition.
Defendants opposed the motion arguing that Plaintiff's failure to act diligently in complying with Rule 4(a)'s clearly established deadline does not constitute excusable neglect. Plaintiff did not file a reply.
Because the Court was unclear as to certain information needed to address the application, it entered an Order directing the Plaintiff to serve and file, on or before November 5, 2009, an affidavit addressing the following questions: (1) when did Plaintiff first complete the preparation of the notice of appeal and was the notice of appeal dated; (2) was the notice of appeal mailed to the Court, and if so, when was it mailed, who mailed it and from where was it mailed; and (3) when and how did the Plaintiff discover that the notice of appeal was not received by the Court. To date, no affidavit has been filed.
I. Rule 4 of the Federal Rules of Appellate ...