United States District Court, E.D. Pennsylvania
Moody seeks to reopen the time to file an appeal nearly six
months after this Court dismissed his complaint. Because
Moody has shown that it is likely that he never received this
Court's previous Order dismissing the case, the Court
will allow him to file an appeal within 14 days.
2010, Moody filed a complaint alleging that correctional
officers seized his legal mail in violation of the First,
Fourth, Sixth, and Fourteenth Amendments more than two years
earlier when he was a pre-trial detainee at Curran-Fromhold
Correctional Facility. This Court dismissed the complaint on
statute of limitations grounds. On appeal, the Third Circuit
remanded so that this Court could apply the prison mailbox
rule to determine whether Moody's complaint was timely
filed. Moody v. Conroy, 680 Fed.Appx. 140, 144 (3d
Cir. 2017). On July 24, 2017, this Court did so and again
dismissed Moody's complaint as barred by the statute of
limitations. The docket lay dormant until January 22, 2018,
when Moody filed the current motion before the Court.
now argues that he never received notice of the July 24, 2017
Order and moves to reopen the time to appeal that Order under
Federal Rule of Appellate Procedure (“Appellate
Rule”) 4(a)(6). (Pl.'s Mot. to Reopen Time to
Appeal at 1-2, ECF No. 88.) According to Moody, he learned
that his case had been dismissed on January 16, 2018, when he
checked the docket at the prison's law library.
(Id. at 1.) Prior to then, Moody had not had the
opportunity to do any research at the law library.
(Id.) Moody “declares and attests” that
he never received a copy of the Order or any other notice of
the disposition of his case. (Id.; see
Pl.'s Reply to Opp'n to Reopen Time to Appeal at 1,
ECF No. 91; Pl.'s Mot. to Compel Ex. A, ECF No.
Moody was required to file a notice of appeal within 30 days
of the date of entry of the judgment or order being appealed.
See Fed. R. App. P. 4(a)(1)(A). However, if a moving
party does not file a notice of appeal within 30 days, the
court may reopen the time to file an appeal for a period of
14 days if:
(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
(B) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6). A court cannot reopen the time to
appeal due to lack of notice alone- only Appellate Rule
4(a)(6) permits a court to reopen the time to appeal.
See Fed. R. Civ. P. 77(d)(2) (“Lack of notice
of the entry does not affect the time for appeal or
relieve-or authorize the court to relieve-a party for failing
to appeal within the time allowed, except as allowed by
Federal Rule of Appellate Procedure 4(a).”)
77(d) requires the clerk of court to immediately serve notice
of an order or judgment on the parties as provided in Rule
5(b) and record the service on the docket. Fed.R.Civ.P.
77(d). Rule 5(b), in turn, states that service can be made by
“mailing it to the person's last known address-in
which event service is complete upon mailing.”
Appellate Rule 4(a)(6)(A): Notice of Order
Defendants argue that Moody is not
entitled to relief because he filed his Motion to Reopen the
Time to Appeal more than 21 days after service, thus failing
Appellate Rule 4(a)(6)(A). (Defs.' Opp'n to Mot. to
Reopen Time to Appeal, ECF No. 90.) According to Defendants,
service was properly made under Rule 77(d)-and the 21-day
period in Appellate Rule 4(6)(A) began-when the clerk's
office mailed the Order to Moody on July 24, 2017.
(Id. at 3-4.) Defendants note that it is Moody's
burden to ...