Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:03-cv-02506-MSK-CBS

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Filed 11/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02506-MSK-CBS CRAIG MAGRAFF, Plaintiff, v. LOWES HIW, INC, Defendant.

PLAINTIFF'S MOTION TO RECONSIDER THE DENIAL OF PLAINTIFF'S MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC

COMES NOW the Plaintiff, Craig Magraff (hereinafter referred to as "Mr. Magraff" or Plaintiff), by and through his attorneys of record, Andrew T. Brake, P.C. and for his Motion to Reconsider the Denial of Plaintiff's Motion for Extension of Time, Nunc Pro Tunc states: 1. Plaintiff's counsel did not confer with Defendant's counsel pursuant to

D.C.COLO.LCivR 7.1 concerning the relief sought herein, as to do so would be futile. Particularly, the Defendant opposed the relief sought in the initial motion, and as this motion seeks reconsideration, the Defendant undoubtedly opposes the relief sought herein. 2. The Plaintiff sought a one (1) day extension of time, nunc pro tunc to file his Notice of

Appeal pursuant to Rule 4(a)(5)(A)(ii), F.R.A.P. The Defendant filed its opposition to same, and prior to having an opportunity to file a reply or submit any additional information relative to the issue, this Court entered its Order denying same.

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3.

As the Plaintiff believes that further detail concerning the circumstances surrounding the

issue should be considered, Plaintiff is requesting that this Court reconsider its denial of Plaintiff's Motion for Extension of Time, nunc pro tunc. 4. Particularly, the undersigned, as lead counsel, was primarily responsible for this case and

was responsible for filing the appeal. The undersigned intended to file the appeal on October 19, 2005 irrespective of any docketing of the deadline to appeal and to file the notice of appeal prior to the deadline docketed in the undersigned's calendar. Specifically, based upon other work the undersigned was doing, including the preparation of two (2) briefs, the undersigned had determined to file the Notice of Appeal on October 19, 2005. However, on the evening of October 18, 2005, the undersigned became unexpectedly and severely ill with the flu. As a result, the undersigned was not in, nor able to be in the office on October 19, 2005, and was taking over the counter medications, as directed, for the symptoms of the flu which included vomiting, headache, fever and chills. The medication's side effects and the symptoms of the flu impacted the undersigned's ability to comprehend and focus on any issues and it was physically impossible for the undersigned to have dealt with any work related issue. Accordingly, the undersigned was unable to focus or otherwise recognize any issues that were occurring within the office, including any deadlines. Further, the undersigned's illness was not anticipated and out of the undersigned's control. In addition, Ms. Lighthall was not in the office on October 19, 2005 during normal business hours, as she was out in a deposition. Further, Ms. Lighthall's only activity in this case had been on an assignment by assignment basis, and had no responsibility for filing the notice of appeal or any activity related to the notice of appeal. Please see the affidavit

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of Lee Judd, a copy of which is attached hereto and incorporated herein by reference as Exhibit "A". 5. To fully address this issue, an analysis of Rule 4, F.R.A.P. is necessary. Rule

4(a)(5)(A)(ii), F.R.A.P. provides: (A) The district court may extend the time to file a notice of appeal if: . . . (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 the party shows excusable neglect or good cause. The United States Court of Appeals, in U.S. v. Torres, 372 F.3d 1159 (10th Cir. 2004) discussed Rule 4, F.R.A.P. and set forth the standard to be applied, stating: . . . The Court held that the determination whether a party's neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395. Such circumstances include "[1] the danger of prejudice to the [nonmoving 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. Id. at 1162. 6. In City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041 (10th Cir. 1994), the Court

recognized that the four (4) factors apply to the a Rule 4(a)(5)(A)(ii) F.R.A.P. Motion. In applying the four (4) factors, three (3) of the factors unequivocally weigh in favor of the grant of the motion for extension of time, as noted by this Court. A one (1) day delay will not prejudice Lowes. Further, this case was commenced in 2003, and one (1) day will have no impact on these proceedings. Lastly, as to whether the movant acted in good faith, pursuant to the affidavit attached hereto, it is clear that there is no evidence or even reasonable contention that the movant 3

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did not act in good faith, as the misdocketing had no effect on this matter. Irrespective of the docketing of the deadline to appeal, the undersigned intended to file the appeal on October 19, 2005, and the illness drove the delay, which was unforseen and establishes that the actions of the undersigned were in good faith. 7. The only remaining factor is whether the reason for delay was in the reasonable control of

the movant, Mr. Magraff. In Chanute, the Court discussed this concept and held: Thus, we apply the Pioneer test for "excusable neglect" under Fed.R.App.P. 4(a)(5).[fn9] This is not to say that the test for excusable neglect is not a strict one. It is merely to say that, "[a]lthough inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect, it is clear that `excusable neglect' . . . is a somewhat `elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Pioneer, ___ U.S. at ___, 113 S.Ct. at 1496 (footnotes omitted). Focusing on the four factors outlined in Pioneer, we cannot say that the district court abused its discretion in finding excusable neglect. Williams focuses on factor three of the Pioneer analysis, pointing out that avoidance of the delay in filing the notice of appeal seems to have been within the reasonable control of the cities.[fn10] . . . . However, under the entire circumstances of the case and looking to the other three Pioneer factors, the district court acted within its discretion. We see no danger of prejudice to Williams from the delay. The amended notice of appeal was filed only 31 days after the end of the period prescribed for notice of appeal in Fed.R.App.P. 4(a)(1), a very short time in the context of a protracted litigation battle during which the parties have been well aware of each others' identities. In addition, there is no evidence that the cities acted in other than good faith. We therefore affirm the district court's grant of the cities' Rule 4(a)(5) motion for extension of time to file notice of appeal. The cities' second notice of appeal is effective and all of the city plaintiffs are properly before us.

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Id. at 1046-1047. Clearly then, the entirety of the circumstances surrounding any motion for time to file a notice of appeal must be considered, not just one factor. Further even the factor concerning what is within the control of a party is subject to consideration of a variety of factors, and is not automatically found against the movant because it was a matter within his control. 8. In United States v. Andrews, 790 F.2d 803, 806 (10th Cir. 1986), the Court recognized

that illness is a basis for establishing excusable neglect. As such, irrespective of the docketing error, which simply resulted in the undersigned believing that the appeal was timely filed until learning of the actual deadline, an unforseen illness precluded the undersigned from filing the appeal on October 19, 2005, as planned. The date the undersigned intended to file the Notice of Appeal was determined by the undersigned schedule in relation to other matters, including briefs which the undersigned was preparing. Further, the undersigned did not consider the deadline for filing the appeal on October 19, 2005 or the deadline for any other pleading on that date, as the undersigned's health rendered the undersigned unable to consider or contemplate any issues within the office, including as a result of medications. Further, Ms. Lighthall was not in the office on October 19, 2005, but was in deposition, and had no responsibility for the filing of this appeal. As such, the third factor weighs in favor of the movant. 9. Alternatively, excusable neglect is not the only reason that an extension of time may be

granted. Particularly, the rule specifically provides that "good cause" is also a basis which can support a grant of a Motion for Extension of Time pursuant to Rule 4(a)(5)(A)(ii), F.R.A.P. 10. In the instant action, good cause has been demonstrated, as the undersigned intended to

file the appeal on October 19, 2005, however, due to a severe and unexpected illness, which caused the undersigned to take over the counter medications, as directed, the side effects 5

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associated therewith, as well as the symptoms of the illness itself, caused the undersigned to be unable to address any issues related to the office, including any filings on October 19, 2005 and to remain in bed the entirety of the day. As such, a one (1) day extension of time is appropriate. Pursuant to the standard identified by this Court, i.e., where there is no fault, excusable or otherwise, to be assessed, and the need for an extension arises from forces outside the control of the movant, the requested extension should be granted. Particularly, Mr. Magraff has no fault. The appeal was to be filed on October 19, 2005 based upon the undersigned's schedule and would have been filed on that date absent an unforeseen illness which rendered the undersigned incoherent. The undersigned's illness was unforseen and was beyond the undersigned's control. 11. No party to this action will be unduly hindered or prejudiced by the granting of the

requested relief. Further it would be in the interests of justice, equity and substantial fair play to grant the requested relief, especially as a result of the nature of the relief sought. WHEREFORE, Plaintiff respectfully requests that this Court enter an Order granting him to and including October 20, 2005 for the filing and acceptance of his Notice of Appeal. Additionally, Plaintiff requests such other and further relief as is deemed just and proper. DATED this 23rd day of November, 2005. Respectfully submitted, ANDREW T. BRAKE, P.C. By: s/Lee T. Judd Lee T. Judd Attorneys for Plaintiff 777 East Girard Ave., #200 Englewood, Colorado 80113 (303) 806-9000 Email: [email protected] 6

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CERTIFICATE OF SERVICE (CM/ECF) The undersigned hereby certifies that on the 23rd day of November, 2005, true and correct copies of the above and foregoing PLAINTIFF'S MOTION TO RECONSIDER THE DENIAL OF PLAINTIFF'S MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC were filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] In addition, the undersigned hereby certifies that a copy of the above listed document was mailed to the following non-CM/ECF participants by mail, postage prepaid to the following individuals: Craig Magraff 4735 Scenic Circle, #1 Colorado Springs, Colorado 80917

/s/ Lee Judd

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