United States District Court, S.D. Ohio, Western Division
H. Rice District Judge
REPORT AND RECOMMENDATION 
L. Ovington United States Magistrate Judge
case is before the Court upon Plaintiff's Motion for
Extension to Appeal (Doc. #19). Plaintiff seeks an extension
“due to lack of preparation time caused by my previous
representative.” (Doc. #19, PageID #1648).
Rule of Appellate Procedure 3, “An appeal permitted by
law as of right from a district court to a court of appeals
may be taken only by filing a notice of appeal with the
district clerk within the time allowed by Rule 4.” Rule
4(a)(1)(B) requires a party to file the notice of appeal
“within 60 days after entry of judgment or order
appealed from if one of the parties is: … (ii) a
United States agency ….”
present case, United States District Judge Walter H. Rice
ordered Judgment be entered in favor of Defendant
Commissioner and against Plaintiff on September 8, 2017.
See Doc. #s 17-18. Accordingly, Plaintiff had until
November 7, 2017 to file a timely notice of appeal.
See Fed. R. App. P. 26 (setting out method for
Rule 4(a)(5)(A) permits a district court to “extend the
time to file a notice of appeal if: (i) a party so moves no
later than 30 days after the time prescribed by this Rule
4(a) expires; ….” Plaintiff filed her Motion for
Extension of Time on November 8, 2017-well within the time
Rule also requires that Plaintiff show good cause or
excusable neglect. “Good cause will be found where
forces beyond the control of the appellant prevented her from
filing a timely notice of appeal.” Nicholson v.
City of Warren, 467 F.3d 525, 526 (6th Cir. 2006)
(citing Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 630
(1st Cir. 2000)); see Douglas v. Swing, 482 F.
App'x 988, 989 (6th Cir. 2012). “The excusable
neglect standard applies in situations in which there is
fault; in such situations, the need for an extension is
usually occasioned by something within the control of the
movant.” Advisory Committee Note to 2002 Amendments to
Fed. R. App. P. 4(a)(5)(A)(ii). But, “Excusable neglect
has been held to be a strict standard which is met only in
extraordinary cases.” Nicholson v. City of
Warren, 467 F.3d 525, 526 (6th Cir. 2006) (citing
Marsh v. Richardson, 873 F.2d 129, 130 (6th
contends that her attorney did not notify her of the
Court's decision until September 25, 2017. (Doc. #19,
PageID #1648). She then called to request a copy of
the Court's decision and she received that copy at her
house on October 4, 2017. Id. “After reviewing
the court's decision, I decided an appeal needed to be
made and that I was going to do it myself. An extension would
give me the time I need to prepare my appeal had I been
notified in a timely manner of the court's
has not demonstrated good cause or excusable neglect.
Although Plaintiff explained that she received notice of the
Court's Decision late, she still had more than thirty
days remaining to file her notice of appeal. She fails to
explain why she could not prepare a notice of appeal during
the time period between October 4, 2017-when she received a
copy of the Court's Decision-and November 7, 2017-when
the sixty-day period for filing a notice of appeal expired.
See Smith v. Montgomery Cnty. Sheriff's Office,
No. 3:10-cv-448, 2013 WL 2156319, at *4 (S.D. Ohio May 17,
2013) (Merz, M.J.) (“A notice of appeal is not a
difficult document to prepare; ….”) (Report
and Recommendations adopted in full, 2013 WL 3967671
(Aug. 1, 2013)(Rose, D.J.)).
Rule 4(a)(5)(B) requires: “If the motion is filed after
the expiration of the prescribed time, notice must be given
to the other parties in accordance with local rules.”
There is no indication in the present case that Plaintiff
served her present motion on Defendant or otherwise provided
notice in accordance with the local rules.
IS THEREFORE RECOMMENDED THAT:
Plaintiff's Motion for Extension to Appeal be DENIED.
Clerk of Court is directed to mail a copy of this Report and
Recommendation to Plaintiff Kimberly Blair at: 117 S. Fourth
Street, Tipp City, Ohio 45371.