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George Carey, Et. Al v. United States

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


March 25, 2011

GEORGE CAREY, ET. AL.,
PLAINTIFFS,
v.
UNITED STATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

Plaintiffs, proceeding in pro per, bring this action to quiet title to real property. Pending before the court is plaintiffs' request to extend the time in which to file an appeal (Doc. 34). The notice of appeal was filed on February 15, 2011, and processed to the Ninth Circuit on February 16, 2011. The Ninth Circuit has issued a remand for the limited purpose of allowing this court to rule on the plaintiffs' request to reopen the time to appeal (Doc. 37).

As the Ninth Circuit noted, the request to reopen the time to appeal was timely filed. Federal Rule of Appellate Procedure 4(a)(6) provides the district court may reopen the time to file an appeal if such a request is filed within 180 days after the judgment is entered, the moving party did not receive notice of the entry of judgment, and no party would be prejudiced. Here, judgment was entered on September 22, 2010, and the notice of appeal (with the request to reopen the time to file an appeal) was filed on February 15, 2011. Thus, the plaintiffs' request was filed within the 180 day time frame provided. In addition, plaintiffs states they did not receive a copy of the judgment, until they check the docket on February 8, 2011. A review of the docket supports plaintiff' statement, and indicates that none of the three plaintiffs received a copy of the September 22, 2010, judgment as the mail addressed to each of the plaintiffs was returned as undeliverable. Finally, the court finds no party would be prejudiced by allowing plaintiffs' request to reopen the time for filing an appeal.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiffs' request to reopen the time to file an appeal is granted;

2. Plaintiffs' notice of appeal is deemed filed within time extended by this order;

3. The Clerk of the Court is directed to serve a copy of this decision on the Ninth Circuit Court of Appeals; and

4. As plaintiffs were informed, no new notice of appeal need be filed.

20110325

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