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Lee v. Price

July 28, 2010

CHRISTOPHER LEE
v.
TYLER PRICE, ET AL.



Name of Assigned Judge George Lindberg Sitting Judge if Other or Magistrate Judge than Assigned Judge

TITLE

DOCKET ENTRY TEXT

Plaintiff's motion for extension of time to file a notice of appeal [61] is granted. Plaintiff may file a notice of appeal within 14 days of the date this order is entered. See FRAP 4(a)(5)(C). See also FRAP 26(a)(2).

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff has made a pro se motion for an extension of time to file his notice of appeal.

This court entered judgment in favor of defendants and against plaintiff on 4/7/2010 [46]. Plaintiff, on 5/7/2010 filed a pro se notice of his "motion to reconsider case 09 C 3273 for rehearing" [55] (entered in the docket on 5/11/2010), which was stricken by the court on 5/11/2010 [56] because plaintiff was represented by counsel. On 5/24/2010 [58] the court granted plaintiffs' counsel's motion [53] to withdraw, which had been filed on 5/10/2010. On 6/7/2010 plaintiff filed pro se a notice of motions for rehearing [60], a supporting memorandum [59]), and a notice of motion for extension of time to appeal [61]. The court construed the memorandum in support of the motion to reconsider [59] to be a motion to reconsider and denied it [62]. The court construed the notice of motion for an extension of time to appeal [61] to be a motion for extension of time to appeal and set a briefing schedule [62].

As defendants correctly note, plaintiff's notice of appeal was due 5/7/2010. Defendants argue that since plaintiff's request for an extension of time was filed after that date, it can only be granted on a showing of excusable neglect. This is not correct. See FRAP 4(a)(5)(A)(ii) (Court may extend the time to file a notice of appeal if "regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause."):

Regardless of whether the motion is filed before or during the 30 days after the original deadline

Courtroom Deputy slb

STATEMENT

expires, the district court may grant an extension if a party shows either excusable neglect or good cause.

Despite the text of Rule 4(a)(5)(A), most of the courts of appeals have held that the good cause standard applies only to motions brought prior to the expiration of the original deadline and that the excusable neglect standard applies only to motions brought during the 30 days following expiration of the original deadline. . . . These courts have relied heavily upon the Advisory Committee Note to the 1979 amendment to Rule 4(a)(5). But the Advisory Committee Note refers to a draft of the 1979 amendment that was ultimately rejected. The rejected draft directed that the good cause standard apply only to motions filed prior to the expiration of the original deadline. . . .

Rule 4(5)(a)(ii) has been amended to correct this misunderstanding . . . . A motion for an extension filed prior to the expiration of the original deadline may be granted if the movant shows either excusable neglect or good cause. Likewise, a motion for an extension filed during the 30 days following the expiration of the ...


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