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Crawley v. State

March 14, 2007

MARIE CRAWLEY, PLAINTIFF,
v.
STATE OF OHIO, DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Judge Smith

Magistrate Judge Abel

ORDER

This matter is before the Court on the Sixth Circuit's remand to permit this Court to rule on Plaintiff's motion for an extension of time to file a notice of appeal (Doc. 51). The Court GRANTS Plaintiff's motion for the reasons that follow.

On November 6, 2006, this Court's grant of summary judgment in favor of Defendant was entered. On January 5, 2007, Plaintiff Marie Crawley filed a Fed. R. App. P. 4(a)(5) motion for an extension of time in which to file a notice of appeal (Doc. 51). On January 11, 2007, the magistrate judge granted an extension of time for filing a notice of appeal until February 6, 2007. A notice of appeal was filed on January 31, 2007 (appeal No. 07-3149).

The Sixth Circuit Court of Appeals reviewed the appeal to determine whether the January 31, 2007, notice of appeal was timely filed. The Sixth Circuit pointed out that, under Rule 4(a)(5), an order entered on January 11, 2007, could not have extended the filing deadline past January 21, 2007, even if a district court's order permits additional time. Thus, under this Rule, Plaintiff's January 31, 2007, notice of appeal would be untimely. The Sixth Circuit went on to explain, however, that this rule is not applicable in the present case because a magistrate judge, rather than a district court judge, ruled on Plaintiff's motion. Because a magistrate judge does not have the authority to grant a motion for an extension of time to file a notice of appeal, the Sixth Circuit found that the magistrate judge's ruling is a nullity and consequently, Plaintiff's motion for an extension of time remains pending. Thus, the Sixth Circuit has remanded this case to permit this Court to rule on Plaintiff's motion (Doc. 51).

Plaintiff, in her memorandum in support of her motion, indicated that she is seeking new counsel for the appeal and also that she was mistaken about the amount of time she had to file an appeal. The Court finds that Plaintiff has shown that there is good cause and excusable neglect. Accordingly, the Court GRANTS Plaintiff's motion (Doc. 51). Based upon this Court's ruling, the Sixth Circuit has indicated that Plaintiff's January 31, 2007, notice of appeal would be considered timely filed.

IT IS SO ORDERED.

GEORGE C. SMITH, JUDGE UNITED STATES DISTRICT COURT

20070314

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