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Jane Doe, A Minor, By and Through Jane Doe 2, Her Mother and Next Friend v. Trico Community School District No. 176

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


April 5, 2012

JANE DOE, A MINOR, BY AND THROUGH JANE DOE 2, HER MOTHER AND NEXT FRIEND, PLAINTIFF,
v.
TRICO COMMUNITY SCHOOL DISTRICT NO. 176, A CORPORATION,
DENNIS SMITH, JOHN DENOSKY, JERRY OHLAU AND MICHAEL JENNINGS, DEFENDANTS.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the plaintiff's motion for an extension of time to file a notice of appeal (Doc. 44) and plaintiff's counsel's motion for leave to withdraw from this case (Doc. 45).

The Court addresses the motion for leave to withdraw first. The Court will deny the motion (Doc. 45) without prejudice because it does not give the notice to the plaintiff as required by Local Rule 83.1(g)(2).

As for the motion for an extension of time to file a notice of appeal, Federal Rule of Appellate Procedure 4 sets forth the timing rules relating to notices of appeal. Rule 4(a)(1) provides that, in a civil case, generally the notice of appeal must be filed within 30 days of entry of the order from which the appeal is taken. The Court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) 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.

Fed. R. App. P. 4(a)(5)(A). If these conditions are met, the Court may extend the deadline the longer of either (1) 30 days beyond the original 30-day period or (2) 14 days after the order granting the extension. Fed. R. App. P. 4(a)(5)(C). Even where both conditions are satisfied, the Court has discretion to grant or deny an extension. See Garwood Packaging, Inc. v. Allen & Co., 378 F.3d 698, 700 (7th Cir. 2004).

The Court entered amended judgment in this case on March 5, 2012. Thus, the plaintiff had 30 days -- until April 4, 2012 -- to file a notice of appeal. The Court is therefore empowered to extend the deadline by 30 days to May 4, 2012. The plaintiff argues that her counsel's impending withdrawal from this case justifies giving her time to find a new counsel to represent her on appeal.

The Court will grant the motion for an extension of time (Doc. 44) and will extend the time for filing a notice of appeal until May 4, 2012, the maximum extension this Court is allowed to make. This should allow sufficient time for the plaintiff's current counsel to give the appropriate notice under Local Rule 83.1(g)(2) before again asking to withdraw from the case and for the plaintiff to obtain new counsel or file a pro se notice of appeal.

In sum, the Court

* GRANTS the plaintiff's motion for an extension of time to file a notice of appeal (Doc. 44)

* EXTENDS the time for filing a notice of appeal until May 4, 2012; and

* DENIES without prejudice the motion for leave to withdraw (Doc. 45). IT IS SO ORDERED.

J. Phil Gilbert

20120405

© 1992-2012 VersusLaw Inc.



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