MEMORANDUM OPINION AND ORDER

DAVID J. HALE, District Judge.

This matter is before the Court upon motions by Plaintiff, who is proceeding pro se, for an extension of time to file an appeal (DN 37) and for leave to appeal in forma pauperis (DN 43). For the following reasons, the Court will grant Plaintiff's motion for extension of time and deny Plaintiff's motion for leave to appeal in forma pauperis.

Plaintiff seeks to appeal the Court's December 23, 2015, Memorandum Opinion and Order, which partially dismissed Plaintiff's complaint. Under Fed. R. App. P. 4(a)(1)(A), a notice of appeal must generally be filed within 30 after entry of the order appealed from. Under this Rule, the deadline for Plaintiff's notice of appeal was January 22, 2016. Plaintiff argues that he is entitled to an extension because he did not receive timely notice of the Court's Memorandum Opinion and Order. The Federal Rules of Appellate Procedure provide that the Court may grant an extension of time to file a notice of appeal if:

Fed. R. App. P. (4)(A)(5)(A).

In their response, Defendants argue that Plaintiff's motion should be denied because Fed. R. Civ. P. 77(d)(2) specifically provides as follows: "Lack of notice of the entry does not affect the time for appeal or relieve — or authorize the court to relieve — a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a)." (Emphasis added). Defendants further argue that Plaintiff has not cited a reason allowed under Fed. R. App. P. (4)(a)(1)(B), 4(a)(4)(A), or 4(c).

In his reply, Plaintiff seems to argue that even if the Court does not give him an extension of time to file an appeal under Fed. R. App. P. 4, the Court should nonetheless reopen the time to file an appeal under Fed. R. App. P. 4(a)(6). This Rule states:

The Court will construe the pro se Plaintiff's motion liberally and consider whether it should either extend or reopen the time to file an appeal. The Court agrees with Defendants that Plaintiff has not met the requirements necessary to grant an extension of time to file an appeal under Fed. R. App. P. 4(a), but the Court finds that Plaintiff has met the requirements necessary for it to reopen the time to file an appeal under Rule 4(a)(6). Indeed, the Court finds the three conditions of this Rule are satisfied and that Plaintiff's motion should be granted.

With regard to subsection (A), Plaintiff avers that he did not receive a copy of the Court's December 23, 2015, Memorandum Opinion and Order until January 28, 2016, after he contacted the Clerk's Office to inquire about the status of his case and learned that Defendants' partial motion to dismiss had been ruled upon. The Court notes that "[w]hile Rule 4(a)(6) puts the burden on the moving party to demonstrate non-receipt, the rule does not mandate a strong presumption of receipt." Nunley v. City of Los Angeles, 52 F.3d 792, 795-96 (9th Cir. 1995). In addition, Plaintiff filed his motion for an extension to time to appeal on February 4, 2016, which was within 14 days of his receiving the Memorandum Opinion and Order, in accordance with subsection (B). Finally, under subsection (C), the Court finds that any prejudice to Defendants is minimal, especially where they have made no argument regarding such. The Court further observes that the Advisory Committee Notes counsel that the "prejudice" should be interpreted as "some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal." Fed. R. App. P. 4(a)(6) (Advisory Committee Notes to 1991 Amendment). The Notes continue, offering that "if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal[,]" then a showing of prejudice might be appropriate. For these reasons, the Court will construe Plaintiff's motion for an extension of time as a motion to reopen the time to file an appeal and grant Plaintiff's motion.

The Court next considers Plaintiff's motion for leave to appeal in forma pauperis. A non-prisoner desiring to proceed on appeal in forma pauperis must obtain pauper status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a)(3) provides that if a party was permitted to proceed in forma pauperis in the district court, he or she may also proceed on appeal in forma pauperis without further authorization unless the district court "certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis." If the district court denies pauper status, the party may file a motion to proceed in forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5). Because Plaintiff seeks to appeal a non-final, non-appealable Order, the Court certifies that the appeal is not taken in good faith. Thus, the Court will deny Plaintiff's motion to proceed in forma pauperis on appeal.

Based on the above, IT IS HEREBY ORDERED as follows: