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Giguere v. State

United States District Court, D. Maine

June 20, 2019

JODY ANN LEAVITT GIGUERE, Plaintiff
v.
STATE OF MAINE, et al., Defendants

          ORDER DISMISSING PLAINTIFF'S MOTION TO EXTEND TIME FOR APPEAL, DISMISSING AS MOOT PLAINTIFF'S MOTION TO SEAL, AND STRIKING PLAINTIFF'S NOTICE OF APPEAL

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         On January 7, 2019, Jody Giguere filed a complaint in this Court, with jury demand, against three Maine District Court Judges, Deputy Chief Judge Susan Sparaco, Judge Valerie Stanfill, and Judge Charles Dow, as well as Governor Janet Mills, based on Ms. Giguere's dissatisfaction with state court child custody and divorce proceedings. Compl. (ECF No. 1). On March 13, 2019, the Court issued an order, dismissing the Plaintiff's Complaint. Order Dismissing Pl.'s Compl. (ECF No. 6). The Clerk entered judgment on March 14, 2019. J. (ECF No. 7).

         On April 12, 2019, the Plaintiff filed a motion to extend the time within which to file a notice of appeal, requesting an additional ten days within which to file her appeal. Pl.'s Mot. for an Extension of Time to File Appeal at 1 (ECF No. 9) (“I . . . would like an extension of time of 10 days to file for an Appeal”). On April 15, 2019, the Plaintiff filed another motion to extend the time within which to file a notice of appeal. Pl.'s Mot. to Extend Time at 1 (ECF No. 11) (“Plaintiff, Jody Leavitt Giguere, . . . would like an extension of time for 10 days to file for an Appeal”). On April 15, 2019, the Court dismissed the April 12, 2015 motion as moot and granted the April 15, 2019 motion. Order (ECF No. 12). Pursuant to that order, Ms. Giguere's notice of appeal was due on or before April 25, 2019. Ms. Giguere failed to file a notice of appeal within this extended time and the time for appeal lapsed.

         On June 13, 2019, Ms. Giguere filed a motion to extend the time for filing an appeal, requesting that the Court extend the period for filing the appeal to June 17, 2019. Mot. to Extend Filing of Appeal (ECF No. 18). Her motion to extend the time for filing a notice of appeal is too late. See Gómez-Cruz v. Fernández-Pabellón, No. 3:13-cv-01711-JAW, 2019 U.S. Dist. LEXIS 75394 (D.P.R. May 2, 2019). In general, a notice of appeal is due “within 30 days after the entry of judgment.” Fed. R. App. P. 4(a)(1)(A); Luckerman v. Narragansett Indian Tribe, 787 F.3d 621, 623 (1st Cir. 2015). Under Federal Rule of Appellate Procedure 4(a)(5)(A)(i), a court may extend the time to file a notice of appeal if “a party so moves no later than 30 days after the time prescribed by the Rule 4(a) expires.” Fed. R. App. P. 4(a)(5)(A)(i). Here, the thirty-day period from April 25, 2019 expired on May 28, 2019.[1]

         In her original motion for extension, the Plaintiff complied with the time limit in this Rule but not in her pending motion for extension. There is an escape hatch if a party shows excusable neglect or good cause “regardless of whether its motion is filed before or during the 30 days after the time prescribed by the Rule 4(a) expires.” Fed. R. App. P. 4(a)(5)(A)(ii); Mirpuri v. ACT Mfg., 212 F.3d 624, 630 (1st Cir. 2000) (“[O]n motion filed within thirty days after the time prescribed by Rule 4(a) expires, the district court may extend the time for filing a notice of appeal so long as the movant demonstrates either good cause or excusable neglect”). Assuming Ms. Giguere's explanations for her late filing constitute excusable neglect or good cause, the Court still does not have authority under the Rule to extend the time for appeal in response to a motion filed after the periods established by the Rule. Accordingly, the Court is not authorized under Rule of Appellate Procedure 4 to extend the time for her to file a notice of appeal.

         The Court may act on the motion to seal. On June 13, 2019, the Plaintiff filed a motion to seal her Complaint because the Complaint contains the name and other personal identifying information of her minor child. Pl.'s Mot. to Seal (ECF No. 49). She asks the Court to redact the Complaint of any of her child's personal identifying information. Id. She also asks the Court to seal the Complaint and her appeal “so that the child's father and family cannot access.” Id. at 2. Finally, she asks the Court to seal the Complaint to ensure that a non-party cannot “commence or receive an action on my behalf and derive a pecuniary benefit as I am the victim of identity theft.” Id. at 2. The Court dismisses the Plaintiff's motion to seal as moot. On April 15, 2019, the Court permanently sealed the Additional Complaint, which is the only part of the Complaint that contained information about her son or non-public information about herself. Order (ECF No. 13). As the Court already permanently sealed the Additional Complaint, it is not necessary to do so again.

         The First Circuit has instructed that “the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.'” Villolda v. Ruz, 821 F.3d 196, 206 (1st Cir. 2016) (quoting Bowles v. Russell, 551 U.S. 205, 209 (2007) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61 (1982) (per curiam))). Under this precept, Ms. Giguere had to comply with the time limits of the rule, and her failure to do so means that this Court does not have the authority to grant her untimely motion to extend the time for filing a notice of appeal.

         The Court DISMISSES the Plaintiff's Motion to Extend Time for Filing an Appeal (ECF No. 18) as untimely. The Court DISMISSES the Plaintiff's Amended Motion to Seal (ECF No. 17) as moot. The Court sua sponte STRIKES the Plaintiff's Notice of Appeal (ECF NO. 19) as untimely filed.

         SO ORDERED.

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Notes:

[1] Counting the thirty-day interval starting April 26, 2019, the thirty-day period lapsed on Sunday, May 26, 2019. As the period fell on a weekend and Monday, May 27, 2019 was Memorial Day, the appeal period would have run on ...


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