IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 9, 2010
UNITED STATES OF AMERICA, PLAINTIFF,
NEIL R. BROWN DEFENDANT.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Supervisee Neil R. Brown filed a Notice of Appeal of this Court's Order Denying His Request for Early Termination of Supervised Release (Docket No. 97). Because the Notice of Appeal was filed more than 14 days after entry of the Order, but within 30 days of the expiration of the time to file the notice of appeal, the Ninth Circuit issued an order remanding the case to this Court for the limited purpose of providing Defendant an opportunity to request that the time for filing the Notice of Appeal be extended based upon a showing of "excusable neglect" pursuant to Federal Rule of Appellate Procedure ("FRAP") 4(b)(4).
Notice was provided to Brown pursuant to the Ninth Circuit order, which gave him until June 7, 2010 to file a request for extension with any supporting papers. (Docket No. 103). Brown filed a letter on June 8, 2010, in which he stated his reasons for not filing his appeal earlier as follows:
1) The order sent to me did not include any instruction about my right to appeal.
2) When I called your clerk's office and asked if I must file within a certain number of days I was told there was no time limit, just to file it as soon as I can - which I did;
3) At the time the appeal needed to be composed, my laptop computer failed; the problem was the fan had burned out and a new one was ordered. The repair was done by... a professional computer repair shop in Redding, CA....
4) I have no typewriter nor is there a computer anywhere near that I have access to it was nearly 3 weeks before I was able to type up and print the appeal to mail to the court.
5) It was prepared and sent to the court as quickly as was possible."
Pursuant to FRAP 4(b)(4), the district court may grant an extension of time for filing an appeal upon a finding of "excusable neglect," for a period of time not to exceed thirty days from the period of time to file the notice of appeal prescribed by the Rule. In evaluating "excusable neglect," the district court must consider: "1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on the judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith." Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004)(en banc)(citing Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993)). "Excusable neglect" can be found in circumstances when the delay was caused by circumstances within the movant's control. See Pioneer Inv. Servs. Co., 507 U.S. at 386-395, and Pincay, 389 F.3d at 856-860. Further, "The Ninth Circuit has... declined to give primary weight to any one of [these] factors, concluding instead that 'the weighing of [the factors]' must be left to the 'discretion of the district court in every case.'" Ari v. Patrick, No. 1:07-cv-00733 LJO TAG HC, 2008 WL 5265194, at *3 (E.D. Cal. Dec. 16, 2008)(quoting Pincay v. Andrews, 389 F.3d at 860.)
Brown's letter supports a finding of "excusable neglect." The Notice of Appeal was filed only four days late, and the delay does not appear to have a negative impact on a judicial proceeding. Additionally, although the reasons for the delay were within Brown's control, and he has not shown he could not have filed the appeal earlier, a finding of bad faith is not made. Therefore, Brown's request is granted. The Clerk shall serve a copy of this order on the United States Court of Appeals for the Ninth Circuit.
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