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Moody v. Conroy

United States District Court, E.D. Pennsylvania

June 1, 2018

BRANDON MOODY, Plaintiff,
v.
JUDE CONROY, et al., Defendants.

          MEMORANDUM

          Schiller, J.

         Brandon 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.

         I. BACKGROUND

         In 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.

         Moody 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. 92.)[1]

         II. DISCUSSION

         Here, 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).”)

         Rule 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.” Fed.R.Civ.P. 5(b)(2)(C).

         A. Appellate Rule 4(a)(6)(A): Notice of Order

         Defendants[2] 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 ...


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