November 26, 2013
DIANE GUETHLEIN, Plaintiff and Appellee,
FAMILY INN, Defendant and Appellant.
Appellee Diane Guethlein (Guethlien) has filed a motion to dismiss the appeal of Appellant Family Inn (Family Inn), pursuant to M. R. App. P. 13(3), on the basis that Family Inn has failed to file a timely brief. Guethlien correctly notes that the Clerk of Court received the record of appeal on August 27, 2012. Family Inn's opening brief should have been filed within thirty days of that date, or September 26, 2013.
Family Inn attempted to file its opening brief on October 4, 2013. Family Inn represented in its certificate of service that it filed the brief on that date. The Clerk of Court did not accept filing of Family Inn's brief, however, until October 30, 2013, due to Family Inn's failure to file an original of its brief with the Clerk of Court until this later date. Guethlein now moves to dismiss Family Inn's appeal on the basis that Family Inn filed its opening brief more than thirty days after its deadline.
Dismissal of an appeal represents an extreme remedy. Roberts v. Nicky, 2002 MT 37, ¶ 13, 308 Mont. 335, 43 P.3d 263. It appears that Guethlein had a copy of Family Inn's brief shortly after the October 4, 2013, date contained in the certificate of service in Family Inn's opening brief. This short delay technically failed to comply with the schedule set forth in Rules of Appellate Procedure. Guethlein has failed to allege that she suffered any prejudice from this delay. We further note that Family Inn already has satisfied the judgment in this case yet still has chosen to pursue this appeal. In light of the lack of prejudice to Guethlien and the extreme nature of the remedy of dismissal, Nicky, ¶ 13, we decline to pursue the route.
Accordingly, IT IS HEREBY ORDERED that Guethlien's motion to dismiss this appeal is DENIED.
The Clerk of this Court is directed to provide a copy of this Order to all counsel of record.