United States District Court, W.D. North Carolina
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on remand from the Fourth
Circuit Court of Appeals for the limited purpose of allowing
this Court to determine whether the time for filing a notice
of appeal should be extended under Fed. R. App. P.
4(a)(5)(A). [Doc. 28].
Plaintiff initiated this action on November 28, 2017, against
Rebecca Martin, Francis Tacy, Jeff Tacy, Sergio De Sousa,
Adam Bull, Sabrina Diz, Kelly Marler, Laramie Collins,
Britney Schultz, The Regeneration Station, Jonathan McElroy,
the Asheville Police Department, Mission Hospital Affiliates,
the McIntosh Law Firm, and Stormy Spicer, asserting claims
pursuant to 18 U.S.C. § 117 (domestic assault by a
habitual offender) and the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §
1961, et seq. [Doc. 1]. Specifically, the Plaintiff
alleged that Rebecca Martin, Francis Tacy, and Jeff Tacy
created an “enterprise, ” the purpose of which
“was to force Plaintiff into forfeiting on her mortgage
and/or taxes, or getting locked up in jail or in a mental
institution all for the purpose of forcing Plaintiff to lose
her land.” [Doc. 1 at 12]. The Plaintiff further
alleged that the thirteen other named Defendants assisted
this “enterprise” and helped further its goals.
December 14, 2017, the Magistrate Judge entered an Order
granting the Defendant City of Asheville an extension of time
until January 18, 2018, to answer or otherwise respond to the
Plaintiff's Complaint. [Doc. 8]. On December 21, 2017,
the Magistrate Judge entered an Order granting Defendant
Mission Hospital Affiliates an extension of time until
January 25, 2018, to answer or otherwise respond to the
Plaintiff's Complaint. [Doc. 13]. That same day, the
Magistrate Judge entered an Order granting Defendant
Asheville Police Department an extension of time until
January 18, 2018, to answer or otherwise respond to the
Plaintiff's Complaint. [Doc. 14].
December 29, 2017, the Court entered an Order dismissing the
Plaintiff's Complaint as frivolous. [Doc. 22]. A
Clerk's Judgment was entered the same day. [Doc. 23].
Plaintiff filed her Notice of Appeal on February 8, 2018.
litigant must file a notice of appeal in a civil suit within
thirty days of the entry of judgment. Fed. R. App. P.
4(a)(1)(A). The timely filing of a notice of appeal is
mandatory and jurisdictional. Bowles v. Russell, 551
U.S. 205, 214 (2007). The district court may extend the time
for filing a notice of appeal if a party moves for an
extension of the appeals period within 30 days after the
expiration of the original appeals period and the party
demonstrates either excusable neglect or good cause to
warrant the extension. Fed. R. App. P. 4(a)(5).
the Court entered its final Judgment on December 29, 2017.
Thus, the Plaintiff had thirty days, through and including
January 28, 2018, to file a timely Notice of Appeal. The
Plaintiff's Notice of Appeal was not filed filed until
February 8, 2018, forty-one days after the entry of Judgment
and eleven days after the appeal period expired. In the
Notice of Appeal, the Plaintiff offers an excuse for the
lateness of her filing and requests that the Court reopen the
appeal time. [Doc. 24 at 2]. Because the Plaintiff's
filing was made within thirty days of the expiration of the
original appeal period, the Court must determine under Fed.
R. App. P. 4(a)(5) whether the Plaintiff has shown excusable
neglect or good cause for an extension of the appeal period.
grounds for excusing her late filing, the Plaintiff states
that “after receiving the order [sic] that litigants
had been given more time to respond she did not expect the
case to be dismissed and was not opening her mail,
taking the extra time that was afforded to the litigants to
respond so that she may deal with her health.” [Doc. 24
at 2] (emphasis added).
Plaintiff offers no specifics regarding her health problems
or why ignoring the Court's correspondence was necessary
to address such problems. Significantly, she does not claim
to have been incapacitated by her health problems during this
noted in the Procedural History, the Magistrate Judge entered
three separate Orders granting extensions of time to three of
the sixteen named Defendants. Thus, when the Plaintiff states
that she decided not to open her mail “after receiving
the order, ” it is unclear from the
Plaintiff's Notice of Appeal to which of these Orders she
is referring. Regardless, all three Orders entered by the
Magistrate Judge granted extensions of time to respond for
only a matter of a few weeks: the City of Asheville and the
Asheville Police Department were allowed until January 18,
2018 to respond, and Mission Hospital Affiliates was allowed
until January 25, 2018. The Plaintiff, however, did not file
her Notice of Appeal until February 8, 2018, two weeks after
the last of these extensions. If the Plaintiff in fact
decided to stop reading the Court's correspondence
because three Defendants received extensions of time to
answer, the Plaintiff fails to explain why she continued to
ignore such correspondence for two weeks after the
deadline passed for these Defendants to
Plaintiff had sued a total of sixteen Defendants and had
served all of them by December 14, 2017. [See Docs.
4, 5, 6: Summonses Returned Executed]. Three Defendants had
already made appearances by December 21, 2017. It would be
obvious to any reasonable litigant that more appearances by
Defendants would be forthcoming, and that there would be
pleadings filed to which the Plaintiff would have to respond.
Yet, the Plaintiff decided unilaterally, with no notice to
anyone -- including the Court ...