UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 17, 2012
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING THIRD AMENDED COMPLAINT (Doc. 14)
On August 29, 2012, the Court entered judgment of dismissal in the case after determining that Plaintiff had not stated a claim despite four attempts to do so. (Docs. 15, 16) On November 15, 2012, Plaintiff filed his notice of appeal. (Doc. 17) In this document, Plaintiff reports the mail system at Coalinga State Hospital is not timely delivered especially as it relates to legal mail. Id. at 3. Plaintiff does not note when he received the judgment ultimately or any facts about his diligence in filing the notice of appeal once he received it.
On December 21, 2012, the Ninth Circuit Court of Appeals remanded the matter to this Court to determine whether the information included in the notice of appeal, if construed as a motion to reopen the period for appeal, should be granted. (Doc. 21)
II. The request for an extension of time fails to comply with FRAP 4(a)(6)*fn1
Plaintiff reports that the mail delivery system at Coalinga State Hospital is slow, particularly as 3 to legal mail. (Doc. 17 at 3) Given this, Plaintiff did not file his notice of appeal timely. Id. This 4 situation, therefore, is governed by F.R.A.P. 4(a)(6). "Rule 4(a)(6) provides the exclusive means for 5 extending appeal time for failure to learn that judgment has been entered." In re Alexander, 197 F.3d 6 421, 425 (9th Cir. 1999) quoting16A Charles Alan Wright et al., Federal Practice and Procedure § 7 3590.6 at 228 (3d ed. 1999); Nunley v. City of L.A., 52 F.3d 792, 799 (9th Cir. 1995); See also Baker 8 v. California Youth Auth., 1999 U.S. App. LEXIS 20359 (9th Cir. Cal. Aug. 25, 1999) ("Rule 4(a)(6), 9 not Rule 4(a)(5), covers the situation where a party's failure to receive notice of an order precludes a timely appeal. See Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1202 (5th Cir. 1993).")
F.R.A.P. 4(a)(6) reads,
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 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced. (Emphasis added). Here, because Plaintiff failed to report when he received the notice of entry of judgment, the Court cannot determine whether Plaintiff failed to receive it within 21 days of August 29, 2012. For the same reason, the Court cannot determine whether he filed his motion to reopen the time to file an appeal within 14 days after he received the notice of entry of judgment. Thus, because the Court cannot make the findings required by F.R.A.P. 4(a) and it may reopen the time to file an appeal "only if" it makes these findings, the Court lacks the "authority under Rule 4(a)(6) to reopen or 2 extend the time for filing a notice of appeal." Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir. 1994). 3
Therefore, the motion to reopen the notice of appeal is DENIED. 4
Because Plaintiff failed to provide a sufficient factual basis for his
request to reopen the period
for filing an appeal, the Court lacks the authority to do so.
Based on the foregoing, the Court ORDERS:
1. The motion to reopen the appeal period is DENIED;
2. The Clerk of the Court is DIRECTED to send a copy of this order to the Ninth Circuit Court of Appeals.
IT IS SO ORDERED.