                                                                           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                           NOT FOR PUBLICATION                              JUN 16 2010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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