United States District Court, D. Colorado
MARGARET A. SILVA, Plaintiff,
v.
US BANK, NATIONAL ASSOC., as Trustee under the Pooling and Service Agreement dated as of February 1, 2007, GSAMP trust 2007-NCI, MORTGAGE PASS-THROUGH CERTIFICATES, series 207, NCI, PAUL KING, District Court Judge, in his individual capacity, DAVID J. STEVENS, District Court Judge, in his individual capacity, 18TH JUDICIAL DISTRICT, Court of Colo. Arapahoe County, RICHARD B. CASCHETTE, District Court Judge, in his individual capacity, CHRISTINE DUFFY, Douglas County Public Trustee, in her individual capacity, LAWRENCE E. CASTLE, in his corporate capacity, ROBERT J. HOPP, in his individual and corporate capacity, MERS INC., a division of MERSCORP INC., and Does 1-10, Defendants.
ORDER GRANTING EXTENSION OF TIME TO FILE NOTICE OF
APPEAL
William J. Martinez United States District Judge.
Before
the Court is Plaintiff's pro se Motion to Extend
Time to File a Notice of Appeal. (ECF No. 132.) Plaintiff
filed this motion on March 21, 2019, one day before her
deadline to file a notice of appeal. Plaintiff requested an
extension until April 21, 2019, stating that she “is
seeking the services of another attorney because the current
attorney has failed to perform in any manner, and has wasted
precious time.” (Id. at 3.)
The
Court referred the motion to U.S. Magistrate Judge Kristen L.
Mix (ECF No. 133), who granted the motion (ECF No. 135),
extending Plaintiff's notice of appeal deadline to April
21, 2019. That day was a Sunday, and Plaintiff filed her
notice of appeal on April 22, 2019. (ECF No. 138.)
By
order dated May 29, 2019, the Tenth Circuit ruled that
“[a] magistrate judge is not authorized to issue a
final ruling on a motion for extension of time to appeal. As
a result, the order entered by the magistrate judge in the
underlying case extending the time to appeal was not a final
and effective order.” (ECF No. 143 at 2 (citations
omitted).) Accordingly, the Tenth Circuit “PARTIALLY
REMANDED to [this Court] to consider Ms. Silva's motion
for an extension of time to appeal.” (Id. at 3
(capitalization in original).)
On June
3, 2019, the Court entered a text-only order stating,
“It is apparent from the Tenth Circuit's reasoning
that it considers Plaintiff's motion to have never been
effectively ruled upon, and so the motion remains
pending.” (ECF No. 144.) The Court therefore withdrew
the reference to Judge Mix and ordered “any defendant
that opposes Plaintiff's motion to file his, her, or its
response no later than June 10, 2019.” (Id.
(emphasis removed).) The Court received two responses, both
timely filed.
The
first response is from Defendant Duffy, who announces that
she does not oppose Plaintiff's motion, but notes that
nothing in the Federal Rules of Appellate Procedure addresses
whether “a previously void notice of appeal [may] be
deemed valid in retrospect under the circumstances presented
here.” (ECF No. 146 ¶¶ 6, 8.) Defendant Duffy
therefore requests that “if the Court grants
[Plaintiff's motion], Plaintiff be directed to file a new
notice of appeal, ” apparently as distinguished from an
amended notice of appeal. (Id. ¶ 9.)
The
Court understands Defendant Duffy's concern but the Tenth
Circuit has only partially remanded the appeal. In other
words, the Tenth Circuit appears to believe that there is
some sense in which Plaintiff's April 22, 2019 notice of
appeal is effective. Stated slightly differently, if the
Tenth Circuit believed that the previously filed notice of
appeal could not be effective under any circumstance,
including retrospective validation, the Tenth Circuit should
have dismissed the appeal for lack of jurisdiction. It did
not. Accordingly, this Court cannot advise, much less order,
Plaintiff to file a “new” notice of appeal
(presumably opening a new Tenth Circuit case number) or an
“amended” notice of appeal. The Court can only
rule on the motion before it and grant Plaintiff an
opportunity to file a notice of appeal. Whether that
notice of appeal should be characterized as “new”
or “amended” is a matter for the Tenth Circuit.
Defendant
U.S. Bank filed the second response brief, presenting
essentially two arguments in opposition to an extension of
time to appeal. The first argument is that this Court has
never vacated Judge Mix's order extending Plaintiff's
deadline to April 21, 2019, and Plaintiff did not file on or
before April 21, 2019, so Plaintiff missed her deadline
regardless. (ECF No. 147 at 8.) Again, however, the Tenth
Circuit's partial remand order establishes that Judge
Mix's order had no effect. Although U.S. Bank is correct
that the Court has never vacated that order, the Court will
do so through this order. In that light, Plaintiff never
missed any deadline because this Court never imposed any
deadline.
U.S.
Bank's second argument is that the desire to search for
counsel is not sufficient good cause, as partially shown by
the three months that have since passed with no new counsel
entering an appearance. (Id. at 6-7.) The Court
finds that evaluating Plaintiff's good cause from its
current vantage point would be substantially unjust to
Plaintiff. Had Tenth Circuit authority existed on April 21,
2019, establishing that magistrate judges may not rule on
motions for extension of time to appeal, Plaintiff would have
received a ruling from the undersigned district judge shortly
after the filing of her motion. Plaintiff should not be
penalized for what turned out to be the Court's error in
handling the motion.
From
that perspective, the Court finds that Plaintiffs desire to
search for appellate counsel states good cause under the
circumstances. Accordingly, the Court will grant an extension
of time of 14 days from the date of this order-the maximum
extension the Court may grant under the circumstances.
See Fed. R. App. P. 4(a)(5)(C).
The
Court therefore orders as follows:
1. The Magistrate Judge's April 1, 2019 minute order (ECF
No. 135) is VACATED;
2. Plaintiff's Motion to Extend Time to File a Notice of
Appeal (ECF No. ...