Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00053-WYD-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-53-WYD-MJW BONNIE WINCHESTER, Plaintiff, v. BRIAN COUSINEAU, THOMAS BEACH, JAMES COLE, TROY NICHOLSON, RANDALL PICKREL, DAN ALLEY, MILES KUBLY, and GAIL CONNER, Defendants. ______________________________________________________________________________ DEFENDANTS' OPPOSITION TO PLAINTIFF' MOTION FOR EXTENSION OF S TIME TO FILE NOTICE OF APPEAL ______________________________________________________________________________ Defendants, BRIAN COUSINEAU, THOMAS BEACH, JAMES COLE, TROY NICHOLSON, RANDALL PICKREL, DAN ALLEY, MILES KUBLY, and GAIL CONNER, by their attorney, ERIC M. ZIPORIN, ESQ., hereby submit the following Opposition to Plaintiff' Motion for Extension of Time to File Notice of Appeal as follows: s 1. On December 21, 2005, the Court entered an order granting Defendants' Motion

for Summary Judgment and also entered Judgment in favor of Defendants and against Plaintiff.

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Accordingly, Plaintiff' Notice of Appeal was to be filed no later than January 20, 2006. See, s FED.R.APP.P. 4(a)(1).1 2. On January 23, 2006, three days after her deadline (two of those days being a

Saturday and a Sunday), Plaintiff filed her Notice of Appeal. Therein, Plaintiff misrepresented the day that Judgment was entered by stating that same occurred on December 22, 2005, which if entered that day, would have rendered her appeal timely. 3. At no time prior to the filing of her Notice of Appeal did Plaintiff seek an

extension of time with this Court as provided for by Fed.R.App.P. 4(a)(5). 4. On January 26, 2006, the United States Court of Appeals for the Tenth Circuit

issued a Show Cause Order to all counsel indicating that it was considering summary dismissal of the appeal for lack of appellate jurisdiction. [See, Show Cause Order dated January 26, 2006 appended hereto as Exhibit A]. The Court of Appeals ordered Plaintiff to file a memorandum brief within fourteen (14) days of the Order on the issue of whether it had jurisdiction in light of the untimely filing of the Notice of Appeal. A reference to this Order is conspicuously absent from Plaintiff' Motion for Extension of Time to File Notice of Appeal (hereinafter "Plaintiff's s Motion"). 5. Initially, Plaintiff' Motion should be denied as she failed to move the Court for s

an extension of time in advance of the filing of her Notice of Appeal as required by Fed.R.App.P. 4(a)(5). In light of the Court of Appeals' Order to Show Cause, Plaintiff is now asking this Court to retroactively accept her Notice of Appeal in an attempt to prevent the

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"A court of appeals acquires jurisdiction of an appeal only upon the filing of a timely notice of appeal[;] this requirement is mandatory and jurisdictional." United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004) (citing Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir. 1974)).

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summary dismissal of her appeal for lack of appellate jurisdiction. The relief Plaintiff seeks now should have been sought prior to the filing of her Notice of Appeal, and it is now up to the Court of Appeals to determine the issue of appellate jurisdiction. 6. Assuming Plaintiff' Motion is properly before this Court, Plaintiff has failed to s Plaintiff

meet the requirements of Fed.R.App.P. 4(a)(5) to warrant an extension of time. recognizes that she must show excusable neglect or good cause.2

See, FED.R.APP.P.

4(a)(5)(A)(ii). The first excuse is that her attorney has had problems receiving documents from the Court via email and, as a result, she did not receive the Judgment when entered on December 21, 2005. However, counsel for Plaintiff admits to receiving the Judgment on December 22, 2005, giving him notice of the date of the entry of Judgment and twenty-nine (29) days thereafter to file the Notice of Appeal. Regardless of when received, Fed.R.App.P. 4(a)(1)(A) is

unambiguous in its requirement that an appeal be filed within thirty (30) days of judgment being entered. The bottom line is that Plaintiff had twenty-nine (29) days upon receipt of Judgment to timely file her appeal and she failed to do so. 7. In an attempt to explain her failure to file her notice within those twenty-nine (29)

days, counsel for Plaintiff contends that his moving of offices from January 6, 2006 through the end of the month resulted in "significant disruption to counsel' entire practice." Presumably s counsel for Plaintiff was well aware as of December 22, 2005 that he was moving offices on

"Good cause comes into play in situations in which there is not fault--excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant." Torres, 372 F.3d at 1161 (citing Bishop v. Corsentino, 371 F.3d 1203, 2004 U.S. App. LEXIS 11360, No. 02-1485, slip op. at 5-6 (10th Cir. June 9, 2004) (internal quotation marks omitted). It does not appear that Plaintiff is relying upon "good cause" in support of her Motion, but rather is claiming "excusable neglect."

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January 6, 2006. Accordingly, counsel had fifteen days (15) from the receipt of Judgment until his move began to file the Notice of Appeal in advance of any disruption. 8. Accordingly, Defendants respectfully request that Plaintiff' Motion be denied as s

the matter of appellate jurisdiction is already properly before the Court of Appeals. Assuming the issue is to be decided by this Court, Plaintiff has failed to follow proper procedure in moving this Court for an extension prior to filing her Notice of Appeal. Not only is Plaintiff' retroactive s attempt in violation of the Rules of Appellate Procedure, but she has failed to establish excusable neglect as contemplated by Fed.R.App.P. 4(a)(5). WHEREFORE, Defendants respectfully request that the Court deny Plaintiff' Motion s for Extension of Time to File Notice of Appeal.

Respectfully submitted,

s/ Eric M. Ziporin Eric M. Ziporin SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 [email protected] Attorney for Defendants

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on this _____ day of February, 2006, I electronically filed a true and correct copy of the above and foregoing Defendants' Opposition to Plaintiff' Motion s for Extension of Time to File Notice of Appeal with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Daniel J. Schendzielos, Esq. [email protected]

s/ Barbara A. Ortell Barbara A. Ortell E-mail: [email protected] Secretary for Attorney Eric M. Ziporin

00212195.DOC

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