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HOME INS. CO. v. LAW OFFICES OF JONATHAN DEYOUNG
June 15, 2001
THE HOME INSURANCE CO., PLAINTIFF,
THE LAW OFFICES OF JONATHAN DEYOUNG, P.C., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
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
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
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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