The opinion
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9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
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12 ROSEMARY D’AUGUSTA, et al., Case No. 22-cv-01979-JSW
13 Plaintiffs,
ORDER GRANTING MOTION TO
14 v. EXTEND TIME TO FILE NOTICE OF
APPEAL
15 AMERICAN PETROLEUM INSTITUTE,
et al., Re: Dkt. No. 130
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Defendants.
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18 Now before the Court for consideration is the motion to extend time to file a notice of
19 appeal filed by Plaintiffs. The Court has considered the parties’ papers, relevant legal authority,
20 and the record in this case, and, for the reasons stated herein, the Court GRANTS Plaintiffs’
21 motion.
22 On January 9, 2023, this Court issued an order granting Defendants’ motions to dismiss
23 without leave to amend and denying Plaintiffs’ motions for leave to file a motion for
24 reconsideration and for leave to file a supplemental complaint. (Dkt. No. 115.) The Court also
25 entered judgment on that date. (Dkt. No. 116.) In response, Plaintiffs filed a motion to set aside
26 the judgment, contending that due process required the Court to hear oral argument prior to ruling
27 on Defendants’ dispositive motions. (Dkt. No. 117.) The Court denied the motion to set aside the
1 Plaintiffs did not file a notice of appeal, as required, within 30 days. Instead, 48 days later,
2 on May 3, 2023, Plaintiffs moved for leave to file a motion for reconsideration of the Court’s
3 denial of the motion to set aside the judgment. (Dkt. No. 123.) Also on May 3, 2023, Plaintiffs
4 || filed a motion to extend time to file a notice of appeal. (Dkt. Nos. 124, 127, 130.) On May 10,
5 || 2023, this Court issued an order denying Plaintiffs’ motion for leave to file a motion for
6 || reconsideration of the motion to set aside the judgment. Remaining before the Court is the motion
7 || to extend time to file a notice of appeal.
8 Federal Rule of Appellate Procedure 4 (“Rule 4”) requires a party to file a notice of appeal
9 || of ajudgment “within 30 days after entry of the judgment or order appealed from.” Fed. R. App.
10 P. 4(a)(1)(A). The district court “may extend the time to file a notice of appeal if: ... Rule 4(a)
11 expires [and the party seeking the extension] shows excusable neglect or good cause.” Fed. R.
12 || App. P. 4(a)(5)(A)Gi). Although Plaintiffs failed to carry their burden in their moving papers to
5 13 demonstrate either excusable neglect or good cause, the Court finds the barest minimum of that
14 || showing in the declaration of Joseph M. Alioto filed in conjunction with Plaintiffs’ reply brief.
3 15 (Dkt. No. 134-1 at 4.) Mr. Alioto claims that the “delay in filing the Notice of Appeal in this
a 16 || case was due to an honest mistake of confusion with another matter.” /d. Rule 4 provides for
3 17 leniency, and it is within the Court’s discretion whether or not to grant leave to file a late notice of
18 appeal. See, e.g., Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004).
19 Accordingly, in its discretion, the Court GRANTS Plaintiffs’ motion to extend time — until
20 || June 16, 2023 — to file their notice of appeal.
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22 IT IS SO ORDERED. 77
23 || Dated: June 7, 2023 f | / tt
24 \ LF Lalu :
35 ABEEREY S. wy
/ Poniter / States Dystrict Judge
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