United States District Court, N.D. California
September 14, 2005.
LARRY RICHARDS, Plaintiff,
HOUSING AUTHORITY OF THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
The Court dismissed plaintiff's claims with prejudice and
entered judgment in favor of defendant on July 6, 2005. On July
28, 2005, the Court granted plaintiff's first motion for an
extension of time to file a notice of appeal until September 5,
2005, which, because September 5 was a national holiday, moved to
September 6, 2005. On September 7, 2005, plaintiff filed a second
motion for an extension of time to file a notice of appeal. After
carefully considering the parties' arguments, the Court hereby
declares plaintiff's motion to be the functional equivalent of a
notice of appeal.
A motion for extension of time to file a notice of appeal may
be deemed the functional equivalent of a notice of appeal if it
satisfies the three requirements of Rule 3(c)(1) of the Federal
Rules of Appellate Procedure. See Andrade v. Lockyer,
270 F.3d 743, 752 (9th Cir. 2001), rev'd on other grounds, Lockyer
v. Andrade, 538 U.S. 63 (2003) (holding that "respectfully
request[ing]" additional time to file a notice of appeal
satisfies the requisite notice of intent). Rule 3 requires a notice of appeal to: "(A)
specify the party or parties making the appeal by naming each one
in the caption or body of the notice . . .; (B) designate the
judgment, order, or part thereof being appealed; and (C) name the
court to which the appeal is taken." Fed.R.App.P. 3(c)(1).
Furthermore, "courts will liberally construe the requirements of
Rule 3." Smith v. Barry, 502 U.S. 244, 248 (1992) (noting that
"the notice afforded by a document, not the litigant's motivation
in filing it, determines the document's sufficiency as a notice
In applying the proper liberal construction of Rule 3 to this
matter, the Court concludes that plaintiff's two motions for
extensions of time have satisfied the requirements of a notice of
appeal under Rule 3. He has clearly specified the parties in both
motions; he designated the judgment of July 6, 2005 in his first
motion; he has consistently acted with the intention of filing an
appeal; and defendant has received ample notice of this
intention. As a result, the Court is satisfied that plaintiff has
fulfilled his obligation to file a notice of appeal, and his
motion for an extension of time is now moot. The Court
recognizes, however, that plaintiff filed his second motion one
day late. But because the Court treats that motion as a notice of
appeal, it is now the responsibility of the Court of Appeals to
determine if it properly has jurisdiction to hear the appeal.
IT IS SO ORDERED.
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