Pernell Evans v. Federal Express Corporation , 384 F. App'x 591 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWARD ALVARADO; JOHN No. 08-16545
AZZAM; CHARLOTTE BOSWELL;
TANDA BROWN; BERTHA DUENAS, D.C. No. 3:04-cv-00098-SI
Plaintiffs,
MEMORANDUM *
CHARLES GIBBS; JANICE LEWIS;
MARIA MUNOZ; KEVIN NEELY;
LORE PAOGOFIE; DYRONN
THEODORE; LASONIA WALKER;
CHRISTOPHER WILKERSON,
Plaintiffs,
and
PERNELL EVANS,
Plaintiff - Appellant,
v.
FEDERAL EXPRESS CORPORATION, a
Delaware corporation, DBA Fedex
Express,
Defendant - Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted May 12, 2010
San Francisco, California
Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.
Plaintiff Pernell Evans appeals the denial of his motion for extension of time
to file a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
The district court may extend the time to file a notice of appeal if a party
moves within 30 days after expiration of the appeal period and “shows excusable
neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). In Lemoge v. United States,
587 F.3d 1188, 1192, 1194-96 (9th Cir. 2009), we held that a district court making
an excusable neglect determination abused its discretion when it failed, inter alia,
to consider each of the four explicit Pioneer factors as well as the prejudice the
moving party would suffer if its motion was denied. Because we decided Lemoge
after the district court’s decision in this case, we vacate and remand to allow that
court to reconsider in light of Lemoge.
VACATED AND REMANDED.
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