GLD-156                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-3871
                                  ___________

                             LISA MARIE OSTUNI,
                                          Appellant

                                        v.

                             WAWA’S MART;
                         PAULINE COUNTERMAN;
                          OFFICER PAUL DUFFY;
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civil No. 3:12-cv-00714)
                 District Judge: Honorable Richard P. Conaboy
                  ____________________________________

      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 14, 2013

          Before: FUENTES, FISHER and GREENBERG, Circuit Judges

                         (Opinion filed: March 19, 2013)
                                   _________

                                   OPINION
                                   _________




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PER CURIAM

       Pro Se Appellant Lisa Marie Ostuni, appeals an order of the United States District

Court for the Middle District of Pennsylvania denying her motion to extend the time to

file an appeal. See Fed. R. App. P. 4(a)(5). We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and review the District Court’s denial of Ostuni’s motion to extend the time to file

an appeal for abuse of discretion. See In re Diet Drugs Prods. Liab. Litig., 

,

153 (3d Cir. 2005).1 For the reasons set forth below, we vacate the District Court’s

denial and remand the case to the District Court for further proceedings.

       Ostuni filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 on April 17,

2012. By order entered June 13, 2012, the District Court dismissed Ostuni’s complaint

with prejudice, except to the extent that her false arrest claim against one of the

defendants could be raised if her conviction was overturned or invalidated. The District

Court ordered the Clerk to close the case. On July 13, 2012, Ostuni filed a motion for

reconsideration, which the District Court denied on July 23, 2012. On September 21,

2012, Ostuni filed a motion for extension of time to appeal.2 The District Court denied

Ostuni’s motion for extension by order entered September 27, 2012. The District Court

       1
        The denial of a Fed. R. App. P. Rule 4(a)(5) motion is a final order for purposes
of appeal. See In re Diet Drugs Prods. Liab. Litig., 401 F.3d at 153.
       2
          The motion for extension of time appeal does not identify the order she seeks to
appeal. For purposes of this opinion, we assume that Ostuni sought an extension of time
to file an appeal from the July 23, 2012 order denying her motion for reconsideration.
Additionally, the docket entry erroneously identifies Ostuni’s motion as a “motion for
extension of time to file response.”


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stated in its order that Ostuni’s case was closed and that “any request for an extension of

time regarding appellate rights is not properly raised in this Court.” Ostuni timely filed a

notice of appeal as to the September 27, 2012 order on October 1, 2012.3

       Rule 4(a)(5) provides that the district court can extend the time to file an appeal if

a party “so moves no later than 30 days after the time prescribed by Fed. R. App. P. Rule

4(a)(1)” and shows “excusable neglect or good cause.” Here, the order denying Ostuni’s

motion for reconsideration was entered July 23, 2012. Pursuant to the rule, Ostuni had to

file the motion for extension of time to appeal the order denying her motion for

reconsideration no later than September 21, 2012. Accordingly, Ostuni’s motion for

extension of time to file an appeal was timely under Rule 4(a)(5).

       As the timeliness of Ostuni’s motion for extension of time to file an appeal is not

an issue, we turn to whether the District Court properly assessed whether Ostuni showed

“excusable neglect or good cause” as required by Rule 4(a)(5). In Pioneer Inv. Serv. Co.

v. Brunswick Assoc. Ltd. P’ship, 

 (1993), the Supreme Court articulated the

standard for finding excusable neglect in the context of the bankruptcy rules. This Court

has applied the Pioneer standard for finding excusable neglect outside of the bankruptcy

context, including our specific application of the Pioneer standard when making an

excusable neglect determination in the context of a Rule 4(a)(5) motion for extension of

time. See In re Diet Drugs, 401 F.3d at 153-54. The determination of whether neglect is

       3
        Fed. R. App. P. 4(a)(1)(A) requires that a notice of appeal in a civil case be filed
within 30 days after the order appealed from is entered on the district court’s docket.


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excusable “is at bottom an equitable one, taking account of all relevant circumstances

surrounding the party's omission.” Pioneer, 507 U.S. at 395. Pioneer provides four

factors to consider when making this equitable determination: (1) the danger of prejudice

to the non-movant; (2) the length of the delay and the impact on judicial proceedings;

(3) the reason for the delay, including whether it was within the reasonable control of the

movant; and (4) whether the movant acted in good faith. Id.

       Here, the District Court incorrectly stated that “any request for an extension of

time regarding appellate rights is not properly raised in this Court.” Rule 4(a)(5) states

that “the district court may extend the time to file a notice of appeal.” (emphasis added).

Moreover, the District Court disposed of Ostuni’s motion “without an opinion, . . . , and

more importantly, without reference to the Pioneer four-factor balancing standard.” In re

Diet Drugs, 401 F.3d at 154. In doing so, the District Court did not exercise its

discretion. Id. We therefore vacate the District Court’s denial of Ostuni’s motion for

extension of time to file a notice of appeal under Fed. R. App. P. 4(a)(5), and remand the

case to the District Court to analyze whether the neglect at issue in this case was

excusable under the Pioneer standard.




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