1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUSSELL STEWART, No. 2:18-cv-01844-KJM-CKD 12 Plaintiff, 13 v. ORDER 14 AMERICAN GENERAL FINANCE, INC., et al., 15 Defendant. 16

17 18 Plaintiff Russell Stewart, proceeding pro se, moves to extend or re-open the time 19 to appeal the court’s dismissal of his complaint for failure to state a claim. Mot., ECF No. 60. 20 Defendants DLJ Mortgage Capital, Inc., Rushmore Loan Management Services LLC, Select 21 Portfolio Servicing, Inc., and Wilmington Savings Fund Society, FSB oppose. “DLJ Opp’n,” 22 ECF No. 63. Defendant OneMain Financial Services opposes separately. “OneMain Opp’n,” 23 ECF No. 65. Plaintiff replied. Reply, ECF No. 68. Having considered the moving papers, the 24 court GRANTS plaintiff’s motion. 25 I. FACTUAL BACKGROUND 26 Plaintiff’s first amended complaint alleges violations of the California 27 Homeowner’s Bill of Rights (HBOR) and racial discrimination against various financial 28 institutions relating to the foreclosure sale of plaintiff’s home. First. Am. Compl. (FAC), ECF 1 No. 36. On April 11, 2019, the assigned magistrate judge issued findings and recommendations 2 recommending that this court dismiss the First Amended Complaint with prejudice for failure to 3 state a claim, ECF No. 50, and on September 30, 2019, the undersigned did so, adopting the 4 findings and recommendations in full. ECF No. 54. 5 Plaintiff proceeded to file a notice of appeal on November 1, 2019, 32 days after 6 the entry of the judgment. ECF No. 56. Because the notice of appeal was untimely under Federal 7 Rules of Appellate Procedure 4(a)(1)(A), plaintiff now moves to extend or re-open time to appeal. 8 Plaintiff alleges he drove to Sacramento “immediately after receiving this anxiously anticipated 9 ruling” to file his notice of appeal. Mot. at 2. He “believes either his mail was inadvertently not 10 collected timely, or mail was put in box [sic] on that Wednesday Oct. 30 2019.” Id. He also 11 states he was “displaced from his residence due to the wrongful foreclosure.” Reply at 2 12 (capitalization altered from original). 13 Defendants argue plaintiff failed to provide any evidence that he had diligently 14 checked his post office box, the only address on file with the court. DLJ Opp’n at 4. As a result, 15 they argue, he did not make a showing that he did not timely receive notice from the clerk of 16 court. Id. In his reply, plaintiff states he checked his mailbox “weekly” and that he was not 17 acting in bad faith. Reply at 2. He also attaches an unauthenticated Office of the Inspector 18 General report about late and lost mail generally. Reply, Ex. A.1 19 II. LEGAL STANDARD 20 The notice of appeal must be filed in a civil case “within 30 days after entry of the 21 judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). The court may extend time to file 22 a notice of appeal on motion if the motion is filed within 30 days of the deadline prescribed by 23 Rule 4(a), and the moving party shows excusable neglect or good cause. Fed. R. App. P. 24 4(a)(5)(A). While prior cases have held that the standard of excusable neglect is “a strict one” 25 intended to allow extension only in “extraordinary cases where injustice would otherwise result” 26 1 To support his assertions, plaintiff attaches an affidavit, but it contains nothing of substance 27 beyond plaintiff’s name, age, and the statement that the affidavit is based on his personal knowledge. Reply, Ex. B. It is possible plaintiff intended to verify his pleading, but the court 28 declines to find his reply admissible on this basis. 1 (see Pratt v. McCarthy, 850 F. 2d 590, 592 (9th Cir. 1988); Alaska Limestone Corp. v. Hodel, 2 799 f. 2d 1409, 1411 (9th Cir. 1986)), the current more lenient standard is set forth in Pioneer Inv. 3 Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 386 n.3 (1993) (citing Pratt in 4 Supreme Court resolution of circuit split about meaning of excusable neglect); see also 5 Calderon v. U.S. Dist. Ct. for Cent. Dist. of Cal., 137 F. 3d 1420, 1422 (9th Cir. 1998) 6 (recognizing Pioneer Inv. Servs. Co. overrules Pratt). The determination of whether neglect is 7 excusable is “at bottom an equitable one, taking account of all relevant circumstances 8 surrounding the party’s omission.” Pioneer Inv. Servs. Co., 507 U.S. at 395. Circumstances to be 9 considered are the danger of prejudice to the opposing party, the length of the delay and its 10 potential impact on judicial proceedings, the reason for the delay, including whether it was within 11 the reasonable control of the movant, and whether the movant acted in good faith. Id. 12 III. DISCUSSION 13 Here, defendants do not argue reopening plaintiff’s time to appeal will prejudice 14 them, and no likelihood of prejudice is apparent to the court. The length and impact of the delay 15 also weigh in favor of the plaintiff, as he filed his notice of appeal a mere two days after the 16 deadline. 17 It is reasonable to infer from plaintiff’s motion that his use of a post office box was 18 due to his displacement from his home after the foreclosure at issue. Reply at 2. While it appears 19 to the court that the plaintiff misapprehended the use of the affidavit to introduce evidence into 20 the record regarding his diligence in checking the mailbox, see note 1 supra, the pleadings and 21 papers filed by pro se litigants are often held to “less stringent standards than formal pleadings 22 drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, Federal Rule of 23 Civil Procedure 11’s prohibition on misrepresentation to the court weighs in favor of 24 consideration of plaintiff’s statements of fact in his motion and reply, although not for their 25 evidentiary weight. Plaintiff’s pleadings on this point do not squarely establish he was not 26 culpable for the delay. At the same time, given that the Pioneer test is one grounded in equity, 27 this factor does not outweigh the others. 28 ///// 1 Lastly, nothing suggests plaintiff acted in bad faith in filing his notice of appeal 2 two days late; delay is not to his advantage and he had no incentive to do so deliberately. 3 IV. CONCLUSION 4 For the foregoing reasons, the court GRANTS plaintiff’s motion to extend the time 5 to appeal. Plaintiff’s notice of appeal is deemed timely filed under Federal Rule of Appellate 6 Procedure 4(a)(5)(C). 7 IT IS SO ORDERED. 8 DATED: February 24, 2020. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28