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HOME INS. CO. v. LAW OFFICES OF JONATHAN DEYOUNG

June 15, 2001

THE HOME INSURANCE CO., PLAINTIFF,
V.
THE LAW OFFICES OF JONATHAN DEYOUNG, P.C., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.

MEMORANDUM AND ORDER

AND NOW, this 13th day of June, 2001, it is hereby ORDERED that defendant's motion for extension of time to file notice of appeal (doc. no. 99) is DENIED. The court's order is based on the following reasoning:

On August 1, 2000, the court granted plaintiffs motion for summary judgment and entered judgment in favor of plaintiff and against defendants. See doc. no. 89. One of the defendants, Elva T. Hoisington, timely filed a motion for reconsideration of the court's decision, but neglected to file a brief in support of her motion, in violation of Rules 7.1(c) and 7.1(g) of the Local Rules of Civil Procedure.*fn1 Following a hearing on the motion for reconsideration, the court denied the motion on the alternative grounds that: (1) there was no "`sound rationale' for departing from the plain language of the Local Rules of Civil Procedure;" and (2) the motion failed on its merits. See doc. no. 95. The court's denial of the motion for reconsideration was filed on September 15, 2000.

Defendant Hoisington filed a notice of appeal of the court's denial of the motion for reconsideration. The filing was made on October 17, 2000, one day after the deadline for Hoisington to file her notice of appeal. See Fed.R.App.Pro. 4(a) (allowing parties 30 days after the judgment or order appealed to file a notice of appeal). Before the court is Hoisington's motion for an extension of time to file a notice of appeal so that her notice of appeal will be deemed timely filed.

Rule 4(a)(5) of the Federal Rules of Appellate Procedure grants district courts the authority to extend the time for the filing of a notice of appeal if: (1) the party seeking to appeal files a motion no more than 30 days after the deadline for filing its notice of appeal passes; and (2) the party shows excusable neglect or good cause. See Fed.R.App.Pro. 4(a)(5). In this case, Hoisington filed her motion for an extension of time on November 14, 2001, see doc. no. 99, within the 30 day time period after the deadline for filing its notice of appeal under Fed.R.App.Pro. 4(a)(5)(i). The question thus presented is whether Hoisington has shown excusable neglect or good cause, and, if so, whether the court should exercise its discretion to extend the filing time as Hoisington requests.

Because defendant Hoisington's apparent rationale is not easy to follow, it is set out in full:

7. John J. Koresko, V., Counsel for Hoisington, was not in his offices from Wednesday, September 13, through Friday, September 28, 2000, because he was presenting tax seminars and meeting with business associates in Georgia, Oregon, California, Nebraska, Illinois, and Florida.
8. On or about Friday, September 15, 2000, the resignation of Mr. Koresko's assistant became effective.
9. On or about Monday, September 18, 2000, a new assistant for Mr. Koresko began her employment. Said new assistant resigned on or about Tuesday, September 19, 2000.
10. On or about Wednesday, September 20, 2000, a new parttime [sic] assistant was retained.
11. By telephone call on Wednesday, September 20, Mr. Koresko advised his new parttime [sic] assistant to calendar the order of September 13, 2000, for appeal within thirty (30) days from the filing date.
12. The parttime [sic] assistant calendared the appeal for thirty (30) days from the date she filed the document in counsel's offices, as October 20, 2000.
13. Mr. Koresko was not in his offices from Friday, October 6, through Monday, October 23, 2000, because he was presenting tax seminars in Florida, Alabama, Oregon, and New Jersey.
14. On or about October 13, 2000, by telephone, Mr. Koresko directed staff [sic] to file a Notice of Appeal in ...

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