United States District Court, D. South Dakota, Southern Division
ORDER REGARDING PLAINTIFF'S MOTION FOR EXTENSION
OF TIME TO APPEAL
Lawrence L. Piersol District Court Judge
Plaintiff, Tamra Welbig ("Welbig), previously
represented by a lawyer in this lawsuit, has filed a pro se
motion for extension of time to file a Notice of Appeal with
the Eighth Circuit. (Doc. 91.) Defendants did not respond to
the motion. For the reasons stated below, the record is
insufficient to decide the motion and Welbig's counsel
will be directed to file an affidavit in order to supplement
sustained injuries when she was arrested by Defendant police
officers on June 5, 2012. A jury trial was held on her claims
that Defendants violated 42 U.S.C. § 1983 during her
arrest. On July 1, 2016, the jury returned a verdict in favor
of Defendants on all of Welbig's claims. Welbig filed
amotion for new trial pursuant to Rule 59 of the Federal
Rules of Civil Procedure. This Court denied that motion in a
Memorandum Opinion issued on February 14, 2017. (Doc. 87.)
The record shows that the Clerk of Court electronically
mailed notice of entry of the Memorandum Opinion to
Welbig's lawyer and to defense counsel. The time in which
Welbig could file an appeal as of right expired thirty (30)
days later on March 16, 2017. See Fed.R.App.P.
4(a)(1)(A); 4(a)(4)(A)(v). On April 14, 2017, Welbig filed a
notice of appeal (doc. 89) and a motion for an extension of
time to file a notice of appeal (doc. 91). The record shows
that the pro se motion and notice of appeal were
electronically mailed by the Clerk of Court to Welbig's
lawyer and to defense counsel. No response has been filed to
the motion for extension of time.
Rule of Appellate Procedure 4(a)(1) provides that, subject to
certain exceptions not applicable here, a notice of appeal
must be filed with the district court clerk within thirty
days "after entry of judgment or order appealed
from." Rule 4(a)(5)(A) provides for an extension of the
thirty day appeal period "if a party so moves no later
than 30 days after the time prescribed" and if that
party "shows excusable neglect or good cause."
the appeal period deadline was March 16, 2017, thirty days
after entry of the Memorandum Opinion and Order denying the
motion for new trial. Welbig's pro se Notice of Appeal
was not filed until April 14, 2017, twenty-nine (29) days
after the time prescribed in Rule 4(a)(1). She also filed the
pending motion for extension oftime on April 14, 2017.
Thatmotionwas timely as it was filed during the requisite
thirty (30) day time period to move for an extension as
prescribed in Rule 4(a)(5)(A).
district court may extend the time to file a notice of appeal
if the party seeking an extension shows that the failure to
file a timely appeal was the product of "excusable
neglect or good cause." FED.R.APP.P. 4(a)(5)(A)(ii);
see, e.g., Gibbons v. United States, 317 F.3d 852,
853 (8th Cir. 2003). The Eighth Circuit has explained that
courts are to consider four factors in determining whether
excusable neglect or good cause for an extension oftime to appeal
exist: (1) the danger of prejudice to the non-moving party;
(2) the length of delay and its potential impact on judicial
proceedings; (3) the reason for the delay, including whether
it was within the reasonable control of the movant; and (4)
whether the movant acted in good faith. Lowry v.
McDonnell Douglas Corp., 211 F.3d 457, 462 (8th Cir.
2000) (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc.
Ltd. P'ship, 507 U.S. 380, 395 (1993)). These four
factors are not equally important; "the excuse given for
the late filing must have the greatest import" and
"will always be critical to the inquiry."
Lowry, 211 F.3d at 463. "The determination of
whether neglect is excusable 'is at bottom an equitable
one, taking account of all relevant circumstances surrounding
the party's omission.'" Chorosevic v.
MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010)
(quoting Pioneer, 507 U.S. at 392).
respect to the first two factors, the Court finds that the
length of delay is moderate because Welbig filed this motion
and her notice of appeal twenty-nine days after her initial
deadline to file a notice of appeal expired. There is at
least some small amount of prejudice to Defendants because
surely they were under the impression, as was this Court,
that the case was fully resolved when the appeal deadline
expired on March 16, 2017, and they continued with this
belief until Welbig filed the motion for an extension almost
a month later on April 14, 2017. These factors weigh slightly
the fourth factor, whether the movant acted in good faith,
there is no sign that Welbig acted in bad faith in filing the
motion requesting an extension of time to appeal. This factor
weighs in favor of Welbig.
the Court must address the most important factor, the reason
for the delay. In her motion for an extension of time to
appeal, Welbig explains the reason for her delay:
Tamra Welbig, desire to appeal the decision in this action
which was entered on February 14th, 2017, but
failed to file a notice of appeal within the required number
of days because: Due to my attorneys lack of communication
and failure to notify me I was denied a new trial. I found
out I was denied via the internet. He refused to communicate
with me via phone or letter; as well as failure to inform me
that I had other options that could have been pursued. At
this point, I believe I have shown "good cause." I
am currently defending myself and pursuing new counsel. I
respectfully ask the court to please take my words into
91.) Welbig's trial lawyer has not submitted an affidavit
explaining the circumstances surrounding his failure to file
a notice of appeal.
Court has reviewed numerous cases from the Eighth Circuit and
other courts for guidance in analyzing whether a reason for a
delay in filing a notice of appeal meets the definition of
excusable neglect or good cause under Rule 4(a)(5)(A)(ii).
The typical case involves an attorney's failure to timely
file an appeal due to a mistake, confusion, error or some
external event that interfered with meeting the deadline. The
courts focus on the conduct of the attorney who failed to act
in a timely fashion on behalf of his or her client. See,
e.g., Treasurer, Trustees of Drury Indus., Inc. Health Care
Plan & Trust v. Goding,692 F.3d 888, 898 (8th Cir.
2013) (appeal filed one day late due to error in law
firm's computer calendaring application was excusable
neglect because it was "an error in attempting to
comply" and not due to procrastination or ignoring the
deadline); Gibbons, 317 F.3d at 854-55 (lawyer's
extended vacation and subsequent illness causing delay in
filing notice of appeal is not the type of neglect meriting
relief under Rule 4(a)(5)); Lowry, 111 F.3d at
463-64 (neglect was not excusable when the delay was due to
"garden-variety attorney inattention, " and the
attorney's excuses for it were "thin" and
unclear). The lawyer's actions are the focus because
parties are bound by the acts and omissions of their lawyers.
See Pioneer, 507 U.S. at 396 ("clients must be
held accountable ...