United States District Court, W.D. Pennsylvania
FLOWERS CONTI UNITED STATES DISTRICT JUDGE.
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.
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
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.
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).
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 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).
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).
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).
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 ...