United States District Court, D. Colorado
CHARLES J. STOUT, Plaintiff,
LORI SEITZ, MICHELLE WESOLOWSKI, ELLIARD, ELISON, and LEGGET, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR EXTENTION OF
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Charles J.
Stout's Motion for Extension of Time to Appeal Pursuant
to Rule 4(a)(5), which he filed in response to an Order of
the Tenth Circuit directing a limited remand to this Court to
consider whether Mr. Stout's late-filed Notice of Appeal
should be accepted. (Doc. ## 55, 56.) Having thoroughly
reviewed the Motion and applicable law, the Court denies Mr.
time limits for filing a notice of appeal are mandatory and
jurisdictional. United States v. Robinson, 361 U.S.
220, 229 (1960). Federal Rule of Appellate Procedure
4(a)(1)(A) requires the filing of a notice of appeal
“within 30 days after entry of the judgment or order
appealed from.” When, as here, a party has filed his
notice of appeal beyond the time specified in Rule 4, that
party may seek relief by showing good cause or excusable
neglect. United States v. Lucas, 597 F.2d 243, 245
(10th Cir. 1979).
cause comes into play “in situations in which there is
no 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.” Fed. R. App. P.
4(a)(5); Bishop v. Corsentino, 371 F.3d 1203, 1207
(10th Cir. 2004).
excusable neglect standard is even more stringent, existing
only when a defendant has done “all he could do under
the circumstances” to perfect a timely appeal.
United States v. Avendano-Camacho, 786 F.2d 1392,
1394 (9th Cir.1986). “[W]ith the exception of
‘extraordinary cases where injustice would otherwise
result,' few cases will ordinarily qualify under the
excusable neglect rubric.” Reinsurance Co. of
America v. Administratia, 808 F.2d 1249, 1251 (7th
Cir.1987). Circumstances giving rise to excusable neglect
include failure to learn of the entry of judgment,
unpredictable events affecting the delivery of notice of
appeal to the clerk, uncontrollable delays in mail delivery,
illness of counsel, and unpredictable events affecting the
feasibility of appeal. United States v. Gibson, 832
F.Supp. 324, 327 (D. Kan. 1993); see United States v.
Andrews, 790 F.2d 803, 807 (10th Cir. 1986) (excusable
neglect existed on part of an unrepresented criminal
defendant who was in intensive care unit of civilian
hospital, and later in federal prison hospital, while
“groggy and incoherent” due to his medication).
well-established rule with particular relevance to
Plaintiff's situation holds that ignorance of the law or
unfamiliarity with the federal rules will almost invariably
fall short of good cause and excusable neglect. See,
e.g., Pioneer Inv. Servs. Co. v. Brunswick Assoc.
Ltd., 507 U.S. 380, 392; United States v.
Dumont, 936 F.2d 292, 294-5 (7th Cir.1991); Pratt v.
McCarthy, 850 F.2d 590 (9th Cir.1988); see also
Advanced Estimating Sys., Inc., 130 F.3d at 999
(“The ancient legal maxim continues to apply: ignorance
of fact may excuse; ignorance of law does not
excuse.”). “[E]ven for an incarcerated pro se
petitioner, [ignorance of the law] generally does not excuse
prompt filing.” Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000).
case, Mr. Stout concedes that he filed his Notice of Appeal
late. (Doc. # 56.) Mr. Stout claims that his motion was
untimely filed because he mistakenly relied on the 60-day
deadline for filing a notice of appeal when the United
States, or its agency or officer, is a party. See
Fed. R. App. P. 4(a)(1)(B). Mr. Stout believed that two of
the Defendants were United States agents because they are
“part of the Sex Offender Management Board (SOMB), an
agency of the State of Colorado.” (Doc. # 56.) He adds
that he “knows[s he is] supposed to meet all deadlines
in the Court” and attributes his mistake to his being
pro se. (Id.)
thoroughly considered the issue, this Court finds that Mr.
Stout's only claimed basis for delay-that he
misunderstood the law because he does not have legal
counsel-is insufficient to support the relief he seeks.
Indeed, this Court sees no reason to stray from the general
and longstanding maxim that ignorance of law is no excuse.
Moreover, [w]hile “a party's pro se status may be
considered in determining whether excusable neglect has been
demonstrated, it does not in and of itself constitute an
excuse for the litigant's non-compliance with procedural
rules.” Goldwyn v. Donahoe, No. 12-4099-JTM,
2013 WL 3778919, at *2 (D. Kan. July 18, 2013) affd, 562
Fed.Appx. 655 (10th Cir. 2014) (denying relief under Rule
4(a)(5) grounded on nothing other than plaintiff's pro se
status; citing numerous cases in support); see also
Cordell v. Pacific Indem., 335 Fed.Appx. 956, 960 (11th
Cir.2009) (no showing of excusable neglect by pro se
appellants, as “even pro se pleadings must adhere to
under Rule 4(a)(5), particularly when based on a mistake of
law, is intended for extraordinary circumstances; granting
the Plaintiffs motion here would alter this standard by
authorizing what would be essentially automatic relief under
Rule 4(a)(5) for any pro se litigant who misunderstands his
procedural obligations. The Court declines to do so, instead
finding that, pursuant to long-standing legal precedent,
Plaintiff demonstrates neither excusable neglect nor good
Court accordingly DENIES Mr. Stout's Motion for Extension
of Time to Appeal ...