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Klein v. Just Energy Group, Inc.

United States District Court, W.D. Pennsylvania

October 27, 2017

JEFFREY FRANK KLEIN, Plaintiff,
v.
JUST ENERGY GROUP, INC., ET AL., Defendants.

          MEMORANDUM OPINION

          JOY FLOWERS CONTI UNITED STATES DISTRICT JUDGE.

         Presently before the court is a “Motion to Extend Time to File Notice of Appeal Under FRAP 4, ” (ECF No. 161), filed by Plaintiff Jeffrey Frank Klein (“Klein”). Upon consideration of the motion, the oppositions filed by Defendant Collectcents, Inc. o/a Credit Bureau of Canada Collections (“Collectcents”), (ECF No. 163), and Defendant Commerce Energy (“Commerce Energy”), (ECF No. 164), and Federal Rule of Appellate Procedure 4, the motion will be denied.

         I. FACTUAL BACKGROUND

         On August 7, 2014, Klein instituted this action, originally proceeding pro se. Prior to being represented by counsel, Klein filed numerous documents in this action, including a motion for leave to proceed in forma pauperis, (ECF No. 1), his original complaint, (ECF No. 2), an opposition to motion for extension, (ECF No. 5), an opposition to motion to dismiss, (ECF No. 19), his amended complaint, (ECF No. 24), a request for entry of default (ECF No. 26), a motion to remove the case from the Alternative Dispute Resolution (“ADR”) Program of the United States District Court for the Western District of Pennsylvania (ECF No. 33), a motion to bifurcate and expedite trial (ECF No. 34), and his consent to have counsel appointed for the purpose of assisting him with the ADR process. (ECF No. 35). Subsequently, on November 16, 2015, attorney Adam Vahanian (“Klein's counsel”) entered his appearance on behalf of Klein, (ECF No 42), and represented him through final judgment. To date, Klein's counsel has not filed any motion to withdraw his representation. The present motion, however, indicates that Klein is proceeding pro se.

         Relevant to the present motion, on May 27, 2015, the court granted without prejudice the partial motion to dismiss for failure to state a claim filed by Defendants Just Energy Ohio, LLC, Just Energy Pennsylvania Corp., Just Energy Group, Inc., and Just Energy Limited (collectively “Just Energy Defendants”) (ECF No. 22); on June 29, 2016, the court granted the Just Energy Defendants' motion for summary judgment, (ECF No. 87); at a hearing held on September 7, 2016, the court granted Defendant Data Exchange's motion to dismiss for lack of personal jurisdiction as consented to by Klein, denied in part and granted in part Klein's motion for leave to amend to file a third amended complaint, and denied leave to file a further complaint against Defendant Just Energy Group, Inc., see (9/07/2016 Minute Entry); and on June 21, 2017, the court granted the motions for summary judgment filed by Collectcents and Commerce Energy, finally resolving this matter. (ECF No. 159).

         During the pendency of this action, another district judge entered a sealed order in this matter on March 29, 2017 (the “sanctions order”) (ECF No. 155), with respect to a joint motion for sanctions filed by Collectcents and Commerce Energy against Klein alleging bad faith conduct in mediation. On April 26, 2017, twenty-eight days after entry of the sanctions order, Klein and his counsel filed a notice appealing the order and stating that it required Klein and counsel to make equal payments to defendants. (ECF No. 156).

         On July 25, 2017, thirty-four days after the court's June 21, 2017 order finally disposing of this action and four days beyond the thirty-day deadline for filing a notice of appeal Klein filed his Notice of Appeal (also “notice”), indicating that he was proceeding pro se (ECF No. 160). The notice states:

Notice is hereby given that Jeffrey Frank Klein, Plaintiff in the above-named case, hereby appeals to the United States Court of Appeals for the Third Circuit from the following Orders and rulings:
• a May 27, 2015 Memorandum Opinion granting Partial Motion to Dismiss for Failing to State a Claim[1] entered in this action on the 27th day of May, 2015.
• Rulings made at status conference held the 22nd day of September, 2015.
• Memorandum Opinion granting Defendants' motions for summary judgment entered in this action on the 29th day of June, 2016.
• Order on Motion for Summary Judgment entered in this action on the 21stday of June, 2017.

(ECF No. 160 at 1-2).

         By handwritten attachment to the notice, Klein acknowledged that he filed it four days late. (ECF No. 160-1). He also indicated that: 1) he only learned on June 26, 2017, (twenty-five days before the notice of appeal was due) from his counsel about the court's rulings that are the subject of the appeal in issue; 2) his counsel “did not turn over possession of [his] file until the following week, ” after counsel informed Klein about the order disposing of the case; 3) when Klein reviewed his file and saw a copy of the court's June 29, 2016 order granting summary judgment, he misread the date as June 29, 2017, presumed it to be the most recent order in the matter, and therefore, he believed he had until July 29, 2017 to file his notice of appeal; and 4) the late notice would not be an unfair burden on any parties. (ECF No. 160-1 at 1).

         The court observes with respect to the first three of the four items indicated on Klein's July 25, 2017 Notice of Appeal that: 1) Klein indicates that he appeals the May 27, 2015 and June 29, 2017 memorandum opinions instead of the orders entered in accordance with those opinions; 2) the May 27, 2015 order granting a partial motion to dismiss indicated that it was granted without prejudice; and 3) what Klein lists as a status conference held and orders entered on September 22, 2015, never occurred; there, however, was a status conference held and orders entered on September 22, 2016. (ECF No. 159).

         By correspondence dated August 3, 2017 to Klein from the Office of the Clerk of the Court of Appeals for the Third Circuit, Klein specifically was advised that he had untimely filed his notice of appeal, and was referred to Federal Rules of Appellate Procedure 4(a)(1) and 4(a)(5), with the indication that the district court had discretion to permit an extension of the time to appeal ...


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