Free Order on Motion for Extension of Time - District Court of Delaware - Delaware

Case 1:04-cv-01372-JJF Document 35 Filed 01/05/2006 Page1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: : Chapter ll
AMERICAN METROCOMM ;
CORPORATION, et al., : Bankr. Case No. 00-3358-PJW
Debtors. ;
THOMAS ABRAMS, ;
Appellant, ;
v. ; Civ. Act. No. 04-1372-JJF
AMC LIQUIDATING TRUST, ; ·
Appellee. ;
MEMORANDUM AND ORDER
Pending before the Court is a Motion For Extension Of Time
For Filing Notice Of Appeal (D.I. 31) filed by Appellant, Thomas
Abrams. By his Motion, Appellant requests an extension of time
to file his Notice of Appeal of the Court’s October ll, 2005
Order denying his Motion For Reconsideration of the Court's July
29, 2005 Order dismissing his appeal with prejudice. Appellant
contends that an extension of time is warranted, because he was
forced to evacuate his New Orleans residence during Hurricane
Katrina and abandon his computer and paperwork related to this
matter. Appellant contends that he experienced extreme
difficulty evacuating and relocating to another state and that he
only recently obtained another computer and retrieved his files
from his damaged home.

Case 1:04-cv-01372-JJF Document 35 Filed O1/05/2006 Page 2 of 4
The Trust Administrator for Appellee, the AMC Liquidating
Trust, has filed an objection to Appellee’s Motion For Extension
of Time. The Trust Administrator contends that Appellant has
engaged in a pattern of extensive, arbitrary and vexatious
litigation during this matter and has failed to show good cause
or excusable neglect that would warrant an extension of time for
the filing of his Notice of Appeal. The Trust Administrator also
points out that Appellant spent considerably more time preparing
his request for an extension of time than would have been
required for him to file a one page Notice of Appeal.
Pursuant to Federal Rule of Appellate Procedure 4(a)(5), the
district court may extend the time to file a notice of appeal if:
(1) the party moves no later than 3O days after the time
prescribed by Rule 4(a) expires, and (2) the party shows
excusable neglect or good cause. Factors relevant to determining
whether a party has shown good cause or excusable neglect
include: (1) the danger of prejudice to the nonmovant, (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, (4) whether the
movant acted in good faith, (5) whether the inadvertence
reflected professional incompetence such as ignorance of the
rules of procedure, (6) whether the inadvertence reflects an
easily manufactured excuse that cannot be verified by the court,
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Case 1:04-cv-01372-JJF Document 35 Filed O1/05/2006 Page 3 of 4
and (7) whether the delay resulted from a complete lack of
diligence. Consolidated Freightways Corp. of Del. v. Larson, 827
F.2d 916, 919 (3d Cir. 1987). An extension granted under Rule
4(a)(5) may not “exceed thirty days after the prescribed time or
10 days after the date when the order granting the motion is
entered, whichever is later.” Fed. R. App. P. 4(a)(5)(C).
Appellant’s request for an extension of time is timely under
Rule 4(a)(5)(i), and therefore, the Court must only consider
whether Appellant has shown good cause or excusable neglect
justifying an extension of time. Appellant has alleged
difficulties in filing his Notice of Appeal due to evacuation and
relocation problems resulting from Hurricane Katrina. The Court
is persuaded that these circumstances justify the granting of an
extension of time. Although Appellant could have presumably
filed his Notice of Appeal in lieu of his Motion For Extension of
Time as the Trust Administrator points out, the Court is not
persuaded that Appellee will suffer undue prejudice as a result
of an extension. The Court further finds that the delay in this
case resulted from circumstances outside the control of Appellant
and do not reflect a lack of good faith or diligence on the part
of Appellant. Accordingly, the Court will grant Appellant’s
request for an extension of time to file a Notice of Appeal.
In reaching this conclusion, the Court further notes that
Appellant filed a document dated December 19, 2005, entitled
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Case 1:04-cv-01372-JJF Document 35 Filed O1/05/2006 Page40f4
“Notice of Appeal.” Because the Court concludes that an
extension of time is warranted and the Court finds no need to
have Appellant re—file that which is already posted on the
Court’s docket, the Court will treat the December 19, 2005 Notice
of Appeal as timely filed. __
NOW THEREFORE, IT IS HEREBY ORDERED this day of January
2006, that:
1. Appellant’s Motion For Extension Of Time For Filing
Notice Of Appeal (D.I. 31) is GRANTED.
2. Appellant's Notice of Appeal dated December 19, 2005
(D.1. 33) is deemed timely filed.
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