Free Motion for Extension of Time - District Court of Colorado - Colorado

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

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Filed 02/08/2006

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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 COSAINEAU THOMAS BEACH JAMES COLE TROY NICHOLSON RANDALL PICKREL DAN ALLEY MILES KUBLY and GAIL CONNER, Defendants.

MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

Plaintiff-Appellant, Bonnie Winchester, through her attorneys, The Law Firm of Cisneros & Schendzielos, LLC, respectfully moves this Court to extend the time for filing a notice of appeal in this matter pursuant to Fed.R.App.P. 4(a)(5); and AS GROUNDS THEREFORE, states as follows: I. FACTUAL BACKGROUND 1. On December 21, 2005 this Court entered an Order granting defendant's motion for summary judgment in this matter. On the same day, the Clerk of the Court entered a judgment for defendants.

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2. The Court apparently served the Order and the Judgment on counsel for the parties by e-mail on December 21, 2005. Pursuant to Fed.R.App.P. 4(a) the original notice of appeal was due January 20, 2006. Counsel for Ms. Winchester did not receive the Order and Judgment until December 22, 2005. This motion is therefore timely filed. 3. For the past several months, counsel for Ms. Winchester has experienced problems with receiving documents through the e-mail system in this Court. Specifically, undersigned counsel receives notices that documents have been filed but is unable to open the filed documents, even at the time of the initial receipt. This problem with the receipt of documents now appears to be resolved through changes in the set-up of the work station computers at counsel's offices. 4. In addition, members of undersigned counsel's staff have been able to open the filed documents but not any of the attachments to those documents. Personnel at the Court were able to assist one staff member in correcting the problem by "walking her through" the necessary adjustments to the staff member's computer. These changes, having been made to all of the law office's network computers seems to have resolved the problem associated with being able to open e-filed and transmitted documents. 5. Additionally, from approximately January 6, 2006, until the end of January 2006, counsel for Ms. Winchester has been moving its offices. The move has resulted in significant disruption to counsel's entire practice, particularly during the week of January 16, 2006. 6. The move meant that counsel's computer system, which includes numerous servers, had to be disconnected and reinstalled at the new location. This meant that counsel's staff did not have any access to the data that was saved on the servers. At various times during the referenced time period some or all of the office computers were inoperable. 2

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7. During this period, the internet connection of counsel's office was also disconnected as the telephone lines were transferred. As a result, none of the computers had access to the internet for purposes of research or for filing documents with the Court. 8. In addition, there has been physical dislocation of personnel and files during the move with some personnel being one location, while files are located in another location. The office staff relied on mobile telephones to maintain contact during the week of January 16, 2006. 9. Undersigned counsel and his staff worked diligently throughout the weekend of January 21 and 22, 2006 in order to re-open the new offices. Counsel for Ms. Winchester was able to file the notice of appeal in this case on January 23, 2006, the next business day to the original deadline. II. LEGAL ARGUMENT 10. F.R.A.P. 4(a)(5) provides: (5) Motion for Extension of Time. (A) The district 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. (B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules. (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later. 11. The United States Court of Appeals for the Tenth Circuit has stated: As to what constitutes "excusable" neglect, the Court said that although inadvertence, ignorance of the rules, or mistakes 3

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construing the rules do not usually constitute "excusable" neglect, the term is an elastic concept. The determination of whether a failure to meet a deadline is "excusable" is at bottom an equitable one, taking into account all of the circumstances, including: (1) the danger of prejudice to the other party; (2) the length of the 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. Id. at 395. See also City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994) (Pioneer standard applies to Rule 4(a)(5).

George v. City of Witchita, 353 F. Supp. 2d 1131, 1132 (10th Cir. 2005) referring to Pioneer Inv. Serv. Co. v. Brunswick Ass. Ltd. Ptnrshp, 501 U.S. 380, 395, 123 L. Ed 2d 74, 113 S. Ct. 1489 (1993). 12. There is no danger of prejudice to the defendants in this matter due to the extremely short period involved in the delay. 13. The notice of appeal in this matter was filed one business day late. 14. The reason for the delay was the combination of difficulties suffered by counsel for Ms. Winchester in receiving and obtaining documents e-filed with the Court and the disruption of counsel's practice due to the move of its offices during the week that the notice of appeal was due. 15. Ms. Winchester and her counsel acted in good faith in preserving her right to appeal the grant of summary judgment to defendants and the dismissal of her action. 16. Ms. Winchester's motion for extension of time is being timely filed pursuant to Fed.R.App.P. 4(a)(5). 17. This Court should grant Ms. Winchester a one business day extension of time to file the notice of appeal in this matter and enlarge the notice as filed. 4

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18. Counsel for defendants has already indicated to undersigned that he wishes the appeal to be dismissed, therefore pursuant to D.C. Colo. L. CivR. 7.1 further discussions would not be beneficial in undersigned's opinion at resolving this issue. WHEREFORE Ms. Winchester, in light of the foregoing, asks this Court to grant a one day extension of time to file the notice of appeal; to accept the notice of appeal as filed; and for such other and further relief as the Court deems appropriate. Dated this 9th day of February, 2006. Respectfully submitted, THE LAW FIRM OF CISNEROS & SCHENDZIELOS, LLC

By: s/ Daniel J. Schendzielos Daniel J. Schendzielos 6426 South Quebec Street Englewood, Colorado (303) 773-6600 Attorneys for Plaintiff

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

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CERTIFICATE OF SERVICE/MAILING I hereby certify that on this 9th day of February 2006 the original and true and correct copies of the foregoing MOTION OF EXTENSION TO FILE NOTICE OF APPEAL were served as follows: Original by e-filing to United States District Court District of Colorado 901 19th Street Denver, Colorado 80294-3589 Copy by e-mail and U.S. Mail to Eric Ziporan, Esq. Senter Goldfarb and Rice 1700 Broadway, Suite 1700 Denver, CO 80290 Copy by U.S. Mail to Bonnie Winchester

s/ Janice R. Tanquary Certifier

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