United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Plaintiff's Notice of
Appeal (Filing No. 82) and Motion for Leave to
Appeal In Forma Pauperis (Filing No. 83), which were
filed on June 13, 2016-95 days after the court entered
judgment (Filing No. 81) in this case on March 9, 2016.
Plaintiff claims that after he was released from prison on
January 26, 2016, he received his mail at the Matt Talbot
Kitchen in Lincoln, Nebraska, but he did not receive this
court's March 9, 2016, Memorandum and Order (Filing No.
80) and Judgment (Filing No. 81) dismissing this
case. Plaintiff's Notice of Appeal requests that this
court allow him to file the Notice out of time. (Filing No.
82 at CM/ECF p. 6.)
Rule of Appellate Procedure 4(a)(1)(A) requires that a notice
of appeal in a civil case must be filed within 30 days of the
entry of judgment. "The requirement of a timely notice
of appeal is mandatory and jurisdictional." Dieser
v. Cont'l Cas. Co., 440 F.3d 920, 923 (8th Cir.
2006). A district court may extend the time to file a
notice of appeal if a party moves for an extension of time
and shows excusable neglect or good cause, provided that the
party moves for the extension of time within 30 days of the
expiration of the 30-day period set out in Rule 4(a)(1)(A).
Fed. R. App. P. 4(a)(5)(A)(ii). In addition, if a party files
one of the post-judgment motions listed in Rule
4(a)(4)(A), the time to file the appeal runs from the entry
of the order disposing of the motion. Fed. R. App. P.
4(a)(4)(A). An untimely notice of appeal cannot serve as a
motion for extension of time to file an appeal. Burgs v.
Johnson County, 79 F.3d 701, 702 (8th Cir. 1996);
Dancer v. Haltom, No. 4:10-CV-4118, 2011 WL
2143029, at *1 (W.D. Ark. May 2, 2011) (same); Clark v.
Aksamit, No. 4:09CV3259, 2010 WL 3909343, at *1 (D. Neb.
Sept. 29, 2010) (same); Clark v. James, No.
4:10CV3045, 2010 WL 3909352, at *1 (D. Neb. Sept. 29, 2010)
the court entered a final judgment dismissing this case on
March 9, 2016. Plaintiff did not file his Notice of Appeal
until June 13, 2016. Plaintiff did not file any post-judgment
motions that would extend the time to file a notice of
appeal, and he filed an untimely notice of appeal without
previously moving for an extension of time to file a notice
of appeal. Therefore, Plaintiff's appeal is untimely
under all of the above-quoted provisions.
from the deadlines set forth above, Federal Rule of
Appellate Procedure 4(a)(6)(A) allows a district court
to reopen the time to file an appeal if three conditions are
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
(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.
is no indication in the electronic court file that Plaintiff
did not receive the court's Memorandum and Order and
Judgment. Rather, the docket sheet for this case indicates
that Plaintiff advised the court of his mailing address on
February 5, 2016 (Filing No. 77), and a General Order (Filing
No. 79), a Memorandum and Order (Filing No. 80), and
a Judgment (Filing No. 81) were all mailed to
Plaintiff at that address, and none of these filings was
returned as undeliverable. Kennell v. Gates, 215
F.3d 825, 829 (8th Cir. 2000) ("A jury generally is
permitted to infer that information sent via a reliable
means-such as the postal service or a telegram-was
received."); Gonzalez v. Houston, No.
4:13CV3016, 2014 WL 1513127 (D. Neb. Apr. 16, 2014) (allowing
extension of time for habeas petitioner's appeal when
petitioner's contention that he did not receive ruling on
motion to amend or alter judgment was confirmed by
petitioner's letter to court inquiring about status of
motion after it had already been ruled upon).
the court cannot conclude that Plaintiff did not receive
notice of the entry of the judgment, as is required under
Federal Rule of Appellate Procedure 4(a)(6)(A) to reopen the
time to appeal, Plaintiff's notice of appeal is also not
timely under that subsection of Federal Rule of Appellate
Procedure 4. Accordingly, IT IS ORDERED:
Plaintiff's Notice of Appeal (Filing No. 82) was
not timely filed.
Plaintiff's Motion for Leave to Appeal In Forma Pauperis
(Filing No. 83) is denied.
clerk of the court is directed to send a copy of this order
to the ...