Notice is hereby given that Lee Kent Hempfling, Pro se Plaintiff in the above named case, hereby appeals to the United States District Court Judge for the Fourth Circuit from an order granting Defendants an extension of time to respond to a motion for summary judgment entered in this action. 

BACKGROUND:

Six months after filing this case, after two changes in the date to complete discovery without Defendants seeking discovery; the Pro se Plaintiff served and filed document 33; 'Motion for Summary Judgment', served on November 1, 2004 and filed on November 3, 2004, supported by document 34; 'Memorandum in Support of Motion for Summary Judgment', served on November 1, 2004 and filed on November 3, 2004;

At 5:21PM, (See attachment A), after the close of business on November 4, 2004, after the Pro se Plaintiff's documents 33 and 34 were available on Pacer early that morning, Defendants served 'discovery' documents (document 39, attachments A,B,C) via Federal Express that were delivered at 9:31 AM November 5, 2005 to Plaintiff, (See attachment A). The 'discovery' documents clearly show L.M. Communications Inc., a dismissed former defendant corporation (L.M. Communications Inc. was dismissed in hearing August 31, 2004) as one of the 'defendants' seeking 'discovery' from Plaintiff. 

On Friday, November 12, 2004 (see attachment D of document 39) Defendants served and filed (document 35 and memorandum document 36) their 'Motion For Extension of Time To File Response To Plaintiff's Motion For Summary Judgment'. Plaintiff received both documents in U.S. Mail, (see attachment D of document 39) on Monday November 15, 2005. Neither document was available on Pacer prior to its being received by the Pro se Plaintiff.

On Tuesday, November 16, 2005 the Honorable Magistrate Judge granted sua sponte (document 35 and memorandum document 36) 'Motion For Extension of Time To File Response To Plaintiff's Motion For Summary Judgment', filed as document 37.

On Tuesday, November 16, 2004 the Pro se Plaintiff served 'Plaintiff's Opposition to Defendants' Motion For An Enlargement of Time For Response To summary Judgment...' (document 38) that was filed November 17, 2004 via Federal Express. According to the United States Postal Service, (See attachment A), the envelope containing document 38 was attempted to be delivered to Defendants' counsel on Saturday, November 20, 2004 and a 'notice' was left. That document, contained in exactly the same size envelope, with exactly the same printed address label, sent from exactly the same post office arrived for delivery in four days. It was delivered at 8:07AM on Monday, November 22, 2004.

On Wednesday, November 17, 2004 Pacer displayed the sua sponte order granting the extension of time to respond to summary judgment for Defendants.

On Saturday, November 20, 2004 the Pro se Plaintiff served document 39, 'Memorandum In Further Support of OBJECTION to Motion For Enlargement of Time For Response To Summary Judgment and Notice of Appeal'. Document 39 was timely filed on Tuesday November 23, 2004, within the required 10 days of the issurance of the order being objected to (Fed. R. Civil P. 72(a)).

On Wednesday, November 24, 2004 document 39 was available in the early morning hours on Pacer.

On Wednesday, November 24, 2004 (See attachment B) Defendants' Counsel served the Pro se Plaintiff with an 'Amended Defendants' Notice Of Deposition Plaintiff' (dated Wednesday, November 24, 2004) arriving November 29, 2004 in which Defendants having been duly shown the impropriety of inclusion of a dismissed former Defendant (and other objections as shown in documents 38 and 39) failed to correct or amend said improprieties or objections. Furthermore, the document (See attachment B), which supplants and replaces the document (See document 38 Attachment C) upon which (document 35 and memorandum document 36) their 'Motion For Extension of Time To File Response To Plaintiff's Motion For Summary Judgment', is based: is not signed by counsel.