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Tungjunyatham v. Johanns

April 30, 2010

TIPAKSORN TUNGJUNYATHAM, PLAINTIFF,
v.
MIKE JOHANNS, SECRETARY OF THE DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER (1) STAYING CASE DURING PLAINTIFF'S ABSENCE FROM UNITED STATES; (2) GRANTING PLAINTIFF'S MOTION TO RE-OPEN THE TIME IN WHICH TO APPEAL SUMMARY JUDGMENT MOTION; AND (3) GRANTING U.S. DEFENDANT'S REQUEST FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT

(Docs. 47 & 48)

Plaintiff Tipaksorn Tungjunyatham, appearing pro se, brought this suit against Defendant Mike Johanns, Secretary of the U.S. Department of Agriculture, claiming (1) employment discrimination based on Plaintiff's Thai origin, (2) retaliation for Plaintiff's filing an EEOC complaint; (3) wrongful termination; and (4) intimidation and violation of privacy. The case was referred to the Magistrate Judge for all proceedings, including entry of final judgment, pursuant to 28 U.S.C. § 636(c), F.R.Civ.P. 73(b), and Local Rule 73-301. On November 13, 2009, this Court entered an order granting in part and denying in part Defendant's motion for summary judgment or, in the alternative, summary adjudication. As a result of this order the sole remaining issue is Plaintiff's wrongful termination.

Prompt resolution of this case has been hindered by Plaintiff's need to return repeatedly to Thailand because of serious illnesses and hospitalizations of both of her elderly parents. On November 3, 2009, while Defendant's first summary judgment motion was under submission, Plaintiff advised the Court of her need to travel to Thailand to visit her ailing father and requested that all schedules and deadlines be postponed until March. On or about March 15, 2010, Plaintiff informally advised the Court that she had again been called to Thailand due to her mother's illness and that she would not receive mail or have access to a computer during her absence (see Doc. 47). At this time, the Court became aware that, while she was away from the United States in November, Plaintiff had not been served with the November 13, 2009 order granting in part and denying in part Defendant's motion for summary judgment or, in the alternative, summary adjudication. Accordingly, Plaintiff was not served with the order until March 15, 2010. On March 18, 2010, Plaintiff requested that the Court rescind its prior order and permit her to respond in a timely fashion (Doc. 47). The Court interprets this document as a motion to re-open the time in which Plaintiff may file an appeal of the November 13, 2009 order. F.R.Civ.P. 8(e).

I. Re-opening Time to Permit Appeal

F.R.Civ.P. 77(d)(1) provides that the Court Clerk will serve notice of the entry of an order or judgment on the parties:

Service. Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear. The clerk must record service on the docket. A party may also serve notice of the entry as provided in Rule 5(b).

If the clerk fails to provide the required notice, F.R.Civ.P. 77(d)(2) provides:

Time to Appeal Not Affected by Lack of Notice. Lack of notice of the entry does not affect the time for appeal or relieve--or authorize the court to relieve--a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a).

Federal Rule of Appellate Procedure 4(a)(6) provides:

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 14 days after the moving party receives notice under Federal Rule of Civil Procedure ...


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