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Turner v. Schwarzenegger

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 9, 2010

ANTHONY R. TURNER, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.

ORDER

On December 14, 2009, plaintiff filed a "notice to file belated appeal with good cause....", which the court construes as a motion for an extension of time to file a notice of appeal.*fn1 Judgment was entered in this case on May 21, 2009. Pursuant to Fed. R. App. P. 4(a)(1)(A), the time for filing a notice of appeal in a civil case is "within 30 days after the judgment or order appealed from is entered." Under Fed. R. App. P. 4(a)(5)(A):

The district court may extend the time for filing a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

In this instance, plaintiff's motion for an extension of time to file a notice of appeal, filed more than six months after entry of judgment, is itself untimely and the motion must be denied on that ground.

Accordingly, IT IS HEREBY ORDERED that plaintiff's "notice to file belated appeal," construed as a motion for an extension of time to file a notice of appeal, filed on December 14, 2009, is denied as untimely under Fed. R. App. P. 4(a)(5)(A).


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