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Boothe v. Deseret Mutual Benefit Administrators

United States District Court, D. Utah, Northern Division

November 13, 2017

KATHY BOOTHE, Plaintiff,
v.
DESERET MUTUAL BENEFIT ADMINISTRATORS, DESERET HEALTHCARE EMPLOYEE BENEFITS TRUST, Defendants.

          MEMORANDUM DECISION AND ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

          David Nuffer District Judge.

         Plaintiff has appealed[1] the Judgment filed Wednesday June 27, 2017, granting Defendants' Motion for Summary Judgment.[2] The notice of appeal was filed on Friday July 28, 2017.[3] Plaintiff filed a Motion for Extension of Time to File Notice of Appeal (“Motion”) on August 26, 2017.[4] The Tenth Circuit Court of Appeals tolled the appeal pending the district court's ruling on the Motion.[5]

         Under Fed. R. App. P. 4(b)(4), a showing of excusable neglect or good cause permits the district court to extend the time to appeal for an additional 30 days.

         In the Motion, Plaintiff argues that excusable neglect or good cause exists because (1) her counsel erroneously calculated the deadline to file an appeal; (2) after seeking funds and opinions on the merits of an appeal, she decided to proceed in forma pauperis (“IFP”); (3) the length of the delay was one day; and (4) “given the foregoing, it certainly cannot be said that Plaintiff is acting in bad faith.”[6] Defendants responded that the neglect of Plaintiff and her counsel is not excusable because the fault for the untimely filing was within their control and they had the ability to timely perform their obligations.[7]

         Because the late filing of Plaintiff's appeal was entirely within her control or control of her counsel, Plaintiff cannot establish excusable neglect or good cause for the untimely filing of her notice of appeal. Therefore, the time for the filing of the appeal must not be extended.

         DISCUSSION

         Rule 4(b)(4) of the Federal Rules of Appellate Procedure provides that:

Upon a finding of excusable neglect or good cause, the district court may . . . extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).

         Plaintiff offers the same support to show excusable neglect and good cause exist. Excusable neglect and good cause will be addressed in turn.

         Excusable Neglect

         “[T]he determination whether a party's neglect is excusable ‘is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.'”[8] “Such circumstances include ‘[1] the danger of prejudice to the [nonmoving party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.'”[9]

         Danger of prejudice to Defendants.

         Plaintiffs argue that Defendants cannot be prejudiced by a one day delay in filing the Appeal.[10] In Defendants' Opposition, Defendants claim Plaintiff's delay resulted in additional attorneys' fees addressing the Motion as well as defending the appeal.[11] If Plaintiff's appeal is authorized, the attorneys' fees incurred by Defendant in defending the appeal appear to be slight.

         Length of delay.

         The length of the delay and its potential impact on judicial proceedings is also slight. Rule 4(b)(4) permits a 30-day extension of the deadline for filing a notice of appeal.[12] Plaintiff filed an appeal on July 28, 2017, one day passed the deadline.[13] Defendants contend that although Plaintiff missed the deadline by only one day, Defendants notified Plaintiff of the error 12 days after the missed deadline and Plaintiff waited additional 18 days to file the Motion.[14] Defendants state that a court may take into account whether the attorney promptly corrected the error after discovering the mistake.[15] Because the delay was one day, the length of delay and impact on judicial proceedings would appear to be minimal.

         Reason ...


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