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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CALEB AVERY T’BEAR,

Plaintiff,

v.

BARRY FORMAN,

Defendant.

Case No. 17-cv-00796-JSC 

ORDER RE MOTION FOR NUNC PRO 

TUNC ORDER

Re: Dkt. No. 260

Before the court is Plaintiff’s motion for an order nunc pro tunc that “reflect[s] the 

unavailability of the U.S. District Court staff and abnormal ECF operations” so Plaintiff may 

proceed with his appeal before the Ninth Circuit. (Dkt. No. 260 at 3.) 

On February 24, 2020, this Court entered judgment in favor of Defendant and against 

Plaintiff on Plaintiff’s claims against Defendant, and entered judgment in favor of Defendant and 

against Plaintiff on Defendant’s counterclaims. (Dkt. No. 240 at 1.) On April 7, 2020, Plaintiff 

filed a notice of appeal to the Ninth Circuit. (See Dkt. No. 249.) Two days later the Ninth Circuit

ordered Plaintiff to show cause why his appeal should not be dismissed for lack of jurisdiction 

given that the notice of appeal was not filed within 30 days after entry of this Court’s judgment as 

required by 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A). (Dkt. No. 

260-10.) In his response to the Ninth Circuit’s order to show cause for this late filing, Plaintiff

argued that circumstances related to the COVID-19 pandemic—chiefly that the “U.S. District 

Court’s ECF electronic filing system would not allow [him] to log on as customary to file the 

Notice of Appeal by the original due date”—prevented him from timely filing his notice of appeal. 

(Dkt. No. 260-11 at 3.) After reviewing the parties’ responses to its order to show cause, the 

Ninth Circuit determined that it “lack[ed] jurisdiction over [the] appeal because the April 7, 2020 

notice of appeal was not filed within 30 days after the district court’s judgment entered on 

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February 24, 2020.” (Dkt. No. 260-14 at 1 (citations omitted).)

In light of the Ninth Circuit’s order dismissing his appeal for lack of jurisdiction, Plaintiff

now moves this Court for an order nunc pro tunc “to correct the record to reflect the fact that the 

Notice of Appeal was filed as ‘timely’” in light of circumstances related to the COVID-19 

pandemic. (Dkt. No. 260 at 8.) 

DISCUSSION

In civil cases, notices of appeal “must be filed with the district clerk within 30 days after 

entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). See also 28 U.S.C. § 

2107(a) (“[N]o appeal shall bring any judgment . . . of a civil nature before a court of appeals for 

review unless notice of appeal is filed within thirty days after the entry of such judgment[.]”); U.S. 

ex rel. Haight v. Catholic Healthcare W., 602 F.3d 949, 952 (9th Cir. 2010) (“[A] party in a civil 

suit has 30 days from the entry of judgment within which to file a notice of appeal[.]”). Rule 4(a) 

is “both mandatory and jurisdictional.” United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007). 

Where Rule 4(a) implements statutory time constraints, untimely civil appeals must be dismissed 

“for lack of jurisdiction, whether or not the parties raise the issue.” Id. Rule 4(a) is enforced 

“without distinction between counseled and uncounseled cases.” Hobson v. Campbell, No. C 07-

5832 SI (PR), 2009 WL 3711926, at *1 (N.D. Cal. Nov. 5, 2009). 

A district court may extend a party’s time to file a notice of appeal where the party moves 

for an extension “no later than 30 days after the time prescribed by [] Rule 4(a) expires[,] and . . . 

that party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A); see also 28 U.S.C. 

§ 2107(c) (permitting a district court to extend the time for appeal where a party “file[s] not later 

than 30 days after the expiration of the time otherwise set for bringing appeal . . . upon a showing 

of excusable neglect or good cause.”) As with Rule 4(a)(1), Rule 4(a)(5)’s requirement of a timely 

motion is “a jurisdictional one . . . created by statute.” U.S. ex rel. Haight, 602 F.3d at 955. Rule 

4(a) is the “exclusive means” to deal with a failure to timely file a notice of appeal. Vargas v. 

Prosper, No. C 06-6671 SI (PR), 2010 WL 2802558, at *1 (N.D. Cal. July 15, 2010); see also 

Hobson, 2009 WL 3711926, at *1. Rule 4(a) “expressly requires” the filing of a motion for 

extension of time, and “expressly requires that the motion be filed no later than the expiration of 

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the 30-day grace period.” Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir. 1981). 

Plaintiff does not dispute that he filed his notice of appeal after the March 25, 2020 

deadline imposed by Rule 4(a) and Section 2107(a). (See Dkt. Nos. 260 at 2.) The gravamen of 

Plaintiff’s motion, however, is that the technical complications he encountered between March 22, 

2020 and April 7, 2020 while attempting to file his notice of appeal excuse his late filing on April 

7, 2020, such that—despite missing the March 25, 2020 deadline—the notice of appeal was 

timely.1 (See Dkt. Nos. 260 at 5, 260-1 at 2.) However, Rule 4(a)(1)(A) and 28 U.S.C. § 2107(a) 

mandate that a notice of appeal must be filed within 30 days of a judgment’s issuance. See Fed. R. 

App. P. 4(a)(1)(A) (“[T]he notice of appeal required [] must be filed with the district clerk within 

30 days after entry of the judgment[.]”) (emphasis added). As such, Rule 4(a) cannot abide any 

excuses for a litigant’s failure to file a notice of appeal within the required 30-day timeframe, 

including Plaintiff’s argument that he could not log onto ECF to file his notice of appeal by the 

March 25, 2020 deadline. (Dkt. No. 260 at 3-4.) 

Accordingly, Plaintiff’s only avenue for relief is Rule 4(a)(5)’s extension for the filing of a 

notice to appeal.2 Rule 4(a)(5) requires that a party move for an extension of time “‘no later than 

30 days after’ the expiration of the time allotted for an appeal,” and the Rule “does not authorize 

late motions [for an extension of time].” U.S. ex rel. Haight, 602 F.3d at 954 (noting that a motion 

for an extension filed beyond this 30-day period was untimely). Where a party has failed to file a 

timely motion to extend, a “nunc pro tunc extension under Rule 4(a)(5) . . . would be futile, 

because [a] district court [is] prohibited from granting an extension in the absence of a timely 

1 Plaintiff also argues that this Court did not deny the filing of his late notice of appeal and that 

Defendant did not object to its filing. However, these facts cannot cure the jurisdictional defects 

caused by the untimeliness of the notice’s filing. See, e.g., Sadler, 480 F.3d at 937; Cel-A-Pak v. 

California Agr. Labor Relations Bd., 680 F.2d 664, 666 (9th Cir. 1982) (“Mere acceptance of the 

untimely notice of appeal will not be construed as a grant of such an extension by the district 

court.”). Furthermore, “[i]t is the responsibility of the court of appeals rather than the district 

court to determine the existence or scope of appellate jurisdiction over an appeal and to dispose of 

deficient appeals.” Hobson, 2009 WL 3711926, at *2

2

In his reply to Defendant’s opposition, Plaintiff states that this is “nonsense” because “[t]here is 

no second jurisdictional deadline if Plaintiff has met the timely filing deadline[.]” (Dkt. No. 265 

at 3-4 (emphasis removed).) However, for the reasons stated above, Plaintiff failed to meet the 

timely filing deadline for his notice of appeal, so there is a second jurisdictional deadline he must 

satisfy. 

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motion.” Id. at 957 (citation omitted). 

Plaintiff’s failure to file a motion to extend time to file a notice of appeal is fatal to the 

current motion. While Plaintiff’s present motion attempts to offer explanations for his late appeal, 

these were not raised in a timely Rule 4(a)(5) motion; instead, they are now offered for the first 

time in a motion for an order nunc pro tunc. On this basis the Court cannot grant an extension to 

Plaintiff’s time to file a notice to appeal. See U.S. ex rel. Haight, 602 F.3d at 957. 

Finally, Plaintiff argues for the first time in his reply brief that Civil Local Rule 5-1(e)(5) 

provides that filings due on the same day as a technical failure “shall be due the next court day[,]” 

and that his inability to file his notice through ECF until April 7, 2020 makes April 7 the “actual 

due date” of his notice to appeal and therefore his notice was timely filed. (Dkt. No. 265 at 3 

(emphasis removed).) As a preliminary matter, because a district court “need not consider 

arguments raised for the first time in a reply brief,” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 

2007), the Court need not consider the argument that Local Rule 5-1(e)(5) extended Plaintiff’s 

filing deadline and made timely his notice under Federal Rule of Appellate Procedure 4(a)(1). In 

any event, Local Rule 5-1(e)(5) does not help Plaintiff. First, it provides that “[t]he Clerk shall

deem the ECF system to be subject to a technical failure on a given day if the system is unable to 

accept filings continuously or intermittently over the course of any period of time greater than one 

hour after 12:00 noon that day.” The Clerk of the Court did not make any such designation and 

there is no evidence in the record (or of which this Court is aware) of any sort of systemic ECF 

failure during the time period at issue. Second, the Rule requires a litigant to attach a declaration 

or affidavit to the late filing “attesting to the filer’s failed attempts to file electronically at least two 

times after 12:00 noon separated by at least one hour on each day of delay due to such technical 

failure]” Plaintiff did not attach any such declaration to his untimely notice of appeal. (See Dkt. 

No. 249.) 

CONCLUSION

For the reasons stated above, the Court DENIES Plaintiff’s motion for an order nunc pro 

tunc. 

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United States District Court

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This Order disposes of Docket No. 260.

IT IS SO ORDERED.

Dated: August 5, 2020

JACQUELINE SCOTT CORLEY

United States Magistrate Judge

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