Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01372-JJF Document 21 Filed 08/08/2005 Page 1 of 3 :
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: )
1
AMERICAN METROCOMM ) Bankruptcy No. O0-3358 (PJW)
CORPORATION, et al., )
)
Debtors, )
THOMAS ABRAMS, )
)
Appellant, )
v. ) Civil Action No. 04-1372 (JJF)
)
AMC LIQUIDATING TRUST, )
)
Appellee. )
SHORT RESPONSE TO APPELLEE REPLY BRIEF, and:
(1) MOTION TO CURE RECORD DUE TO ‘EXCUSABLE NEGLECT’;
(2) MOTION TO FILE DESIGNATION OF RECORD OUT OF TIME
Appellant Thomas Abrams, appearing in proper person, herein files the
above motions and a short response to the Appellee reply brief, as follows:
Although a citizen’s right to appeall is as elemental as it is sacrament,
appellee ignorantly continues to argue this court lacks jurisdiction. In fact, denial
of this appeal would be an abuse of judicial discretion absent a showing by the
District Court of appellant’s “tlagrant bad faith" or "willful failure" to file his
appeal notice, or "evidence of an intent to ilout the District Court’s instructions?
'U.S. Const. amend. XIV. i
I i 5

Case 1:04-cv-01372-JJF Document 21 Filed 08/08/2005 Page 2 of 3
or °‘deliberate dilatory action," or "callous disregard" by the present pro se
appellant of his responsibilities to follow federal court procedures.2
Therefore, appellant respectfully motions for a judicial determination of
"excusab1e neglect" as a matter of law and/or equity. This trial court has broad `
discretion in determining what constitutes "excusable neglect" under Rule 4(a) of _
the Federal Rules of Appellate Procedure, and such a determination is accorded
great deference on appellate review and will not be reversed in the absence of an
abuse of discretion.3
With respect to extending the time to file a notice of appeal based on
excusable neglect, a trial judge also has wide discretion in dealing with a litigant
whose predicament results from (as appellee alleges) blatant ignorance of clear or
easily ascertainable rules. ln the instant appeal, Judge Walsh the Claimant
to proceed in forma pauperis and the Claimant to appeal his Order
granting summary judgment. lf Judge Walsh had not wanted to allow appellant
IFP status or to file his appeal out of time — if the court had decided Abrams’
"neglect" was not excusable — he would have denied IP P and late-filing status and
Zgrg, for example, Poulis v. State Farm Fire & (.`asua!g; Co., 747 F. 2d 863; 714 F.2d 124 (3d
Cir.1983); National Hoe/reg League v. Metrogo/iran Hockey Club, [nc., 427 U.S. 639,96 S.Ct.
2278, 49L.Ed.2d747 (1976); Titus v. Mercedes Benz at North America, 695F.2d746 (3 Cir. 1982).
3g, for example, Harris Truck Lines, Inc. v Cherry Meat Packers, Inc. (1962) 371 US 215, 9 L
Ed 2d 261, 83 S Ct 283; United States v Ferrer (1980, CAI Puerto Rico) 613 F2d 1188.
2

Case 1:04-cv-01372-JJF Document 21 Filed 08/08/2005 Page 3 of 3
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