Opinion
02 Civ. 9120 (SAS).
April 3, 2007
For Plaintiff: Nina H. Kazazian, Esq., Kazazian Associates, LLC, Denver, Colorado.
For Defendants: Christina L. Feege, Esq., Littler Mendelson, New York, New York.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff's Third, Fourth and Sixth Claims for Relief were dismissed pursuant to a final Judgment entered by the Clerk of the Court on December 7, 2006, which was served by mail and received by plaintiff's counsel on December 14, 2006. On January 10, 2007, plaintiff filed a notice of appeal notwithstanding the fact that the last day to do so was January 8, 2007. Then, on February 12, 2007, plaintiff filed the instant motion seeking a one-day extension of time to file pursuant to Federal Rule of Appellate Procedure 4(a)(5) ("Rule 4(a)(5)"). Although defendants oppose this motion on several grounds, plaintiff claims that she has shown good cause or excusable neglect for filing a late notice of appeal.
See Motion for a One-Day Extension of Time to File Notice of Appeal ("Motion") at 1.
Federal Rule of Appellate Procedure 4(a)(1) provides, in general, that the notice of appeal must be filed "with the district clerk within 30 days after the judgment or order appealed from is entered." When computing the relevant time period under Federal Rule of Appellate Procedure 26 ("Rule 26"), the day the judgment is entered is excluded while the last day of the period is included. See Fed.R.App.P. 26(a)(1)-(3). Furthermore, if the last day of the period falls on a Saturday, Sunday or legal holiday, the notice of appeal may be filed on the next business day. See id. 26(a)(3). Here, the relevant time period began on December 8, 2006, and ended on January 6, 2007. Because January 6, 2007 fell on a Saturday, plaintiff had until the following Monday, January 8, 2007, in which to file her notice of appeal.
Rule 4(a)(5) provides that a "district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) requires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause."
See Defendants' Opposition to Plaintiff's Motion for Extension to File a Notice of Appeal ("Opp.").
See Plaintiff's Reply to Motion for Extension of Time to File Notice of Appeal ("Reply") at 2-5.
II. DISCUSSION
A. Counsel Miscalculated the Relevant Time Period
Plaintiff argues that her notice of appeal was due by January 11, 2007. Plaintiff arrives at this date by calculating thirty days after entry of the judgment, extending that date to the next business day, and then adding three days because she was served by mail. In other words, plaintiff calculated the end of the thirty-day period to be January 6, 2007, which happens to be a Saturday. Plaintiff therefore extended the thirty-day period to the following Monday, January 8, 2007. To this date, plaintiff adds an additional three days pursuant to Rule 26(c).
See Rule 26(e) ("When a party is required or permitted to not within a prescribed period after a paper is served on that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service.").
See Motion at 1 ("According to FRAP 4(a)(1)(A) and 26(c), therefore, Plaintiff's notice of appeal was due within 30 days after the entry of judgment plus three (3) days for service by mail, or January 11, 2007."). If this were in fact the case, it is questionable why plaintiff filed the instant motion seeking a one-day extension.
However, as the Fifth Circuit has explained, the additional three-day period under Rule 26(c) does not apply to a judgment from which an appeal is taken. Thus, plaintiff's notice of appeal was due by the next business day (January 8, 2007) following the end of the thirty-day period (January 6, 2007) without any three-day extension under Rule 26(c). Moreover, even if plaintiff were correct that the three-day extension applied, her notice of appeal would still be untimely. Assuming arguendo that Rule 26(c) did in fact apply, this Court would calculate the entire thirty-three day period from the date following entry of judgment to determine the end of the filing period. When counting thirty-three days after December 7, 2006, the end of the filing period falls on Wednesday, January 9, 2007. Thus, plaintiff's notice of appeal is untimely whether or not Rule 26(c) applies.
See Ludgood v. Apex Corp. Ship Mgmt., 311 F.3d 364, 367 (5th Cir. 2002) ("In any event, the additional three calendar days after service by mail as permitted by Fed.R.App.P. 26(c) is unavailable because the time for filing notice of appeal commences to run from the entry of judgment and not 'after a paper is served on that party' as provided in Rule 26(c). . . . It is further well established that a notice of appeal is effective on the date it is actually filed."). Cf. Cordon v. Greiner, 274 F. Supp. 2d 434, 437 n. 2 (S.D.N.Y. 2003) (stating that "we cannot add three calendar days pursuant to Rule 6(e) of the Federal Rules of Civil Procedure to the deadline within which the Petitioner's notice of appeal should have been filed. The 30-day requirement of Fed.R.App.P. 4(a) is not affected by Fed.R.Civ.P. 6(e); since the appeal time starts from the entry of the judgment and not from service of the notice, Rule 6(e) does not apply so as to enlarge the timed allowed for filing the notice of appeal.") (quotation marks and citations omitted), aff'd, No. 03-2599-PR, 2007 WL 786332 (2d Cir. Mar. 15, 2007) (summary order).
This interpretation explains plaintiff's request for a "one-day extension" of time, through and including January 10, 2007. See Motion at 1.
Furthermore, plaintiff's request for an extension of time is itself untimely. Under Rule 4(a)(5), a party must move for an extension of time within thirty days after the expiration of the original time period. Thus, plaintiff was required to file her extension request within thirty days of January 6, 2007, or at the latest, January 8, 2007. Plaintiff's request was therefore due by either February 5, 2007 (counting from January 6, 2007) or February 7, 2007 (counting from January 8, 2007). However, plaintiff did not file her motion until February 12, 2007. Accordingly, plaintiff's request for an extension is barred by Rule 4(a)(5) regardless of whether she has shown good cause or excusable neglect.
B. Whether Plaintiff Has Shown Good Cause or Excusable Neglect is a Question of Fact for this Court to Determine
As grounds for her motion, plaintiff states that her counsel was unable to file the notice of appeal earlier than January 10, 2007 because plaintiff "was recently diagnosed with ovarian cancer and was undergoing heavy doses of chemotherapy treatment during the time period form December 14, 2006 through January 6, 2007." Hence, plaintiff argues that her unavailability, due to cancer treatments, during the three weeks after the Judgment was entered constitutes good cause. Defendants retort that the claims in issue have been resolved since early 2005 and that plaintiff's counsel "has consistently stated plaintiff's intention to appeal these long dismissed claims." Thus, "it [is] plainly inconceivable that Plaintiff and her counsel were 'unable' to discuss her appeal rights until the date that her Notice of Appeal was due, on January 8, 2007, or that counsel lacked the authority to file a Notice of Appeal on Plaintiff's behalf." According to plaintiff's counsel, however, "the passage of time and recent change in plaintiff's circumstances required additional consultation regarding whether to appeal."
Motion at 1-2.
See Reply at 3.
Opp. at 7.
Id.
Reply at 3.
In Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, the Supreme Court set forth a four-factor test for determining excusable neglect: "[1] the danger of prejudice to the [non-moving party], [2] the length of the delay and its potential 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." Thus, "the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission."
507 U.S. 380, 395 (1993).
Id.
In sum, plaintiff's medical condition would qualify as good cause under Pioneer if that were, in fact, the real reason for the delay. However, while plaintiff's medical condition is most unfortunate, it is a pretext and the real reason for the delay was counsel's misinterpretation of the rules governing appeals. Plaintiff's counsel has conceded as much in her reply papers when she states: "In addition, counsel for plaintiff interpreted the rules to provide an additional three days for mailing, to be added to the deadline of January 8, 2007. . . . These facts constitute good cause or excusable neglect such that the court should grant the motion for extension." Furthermore, if plaintiff's medical condition were the true reason for the delay, plaintiff's counsel could have taken steps to preserve her client's rights such as requesting an extension or stay of all appeal-related deadlines. Plaintiff's counsel did not take such steps because she did not think she had to based upon her admitted misinterpretation of the relevant appellate rules.
Reply at 3-4.
It is within the province of the district court to make credibility determinations which, on appeal, are reviewed for clear error. Thus, the Court's decision to discount plaintiff's medical condition in favor of a finding of counsel error is a factual finding subject to this standard on review. Moreover, courts within the Second Circuit are not so forgiving when the reason for the delay is attorney inadvertence. For example, in In re Johns-Manville Corporation, the Second Circuit dismissed a cross-appeal filed one day after the expiration of the fourteen-day limit triggered by the filing of the initial notice of an appeal and six days after the thirty-day limit triggered by entry of the judgment. The court concluded that the Supreme Court's decision in Eberhart v. United States mandated strict compliance with the time limits governing a cross-appeal. In dismissing the cross-appeal, the Second Circuit observed the following with regard to attorney inadvertence:
We review a district court's decision under Rule 4(a)(5) for abuse of discretion. See Goode v. Winkler, 252 F.3d 242, 245 (2nd Cir. 2001). In Silivanch [v. Celebrity Cruises, Inc., 333 F.3d 355 (2d Cir. 2003)], the party claiming excusable neglect had relied on mistaken information gathered from another attorney regarding the last day to file a notice of appeal. The District Court had concluded that the attorne's neglect was excusable. We reversed, citing with approval Lowry v. McDonnell Douglas Corp., 211 F.3d 457 (8th Cir. 2000), in which the Eighth Circuit observed, "Notwithstanding the 'flexible' Pioneer [Investment Services Co. v. Brunswick Associates Ltd., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)] standard, experienced counsel's misapplication of clear and unambiguous procedural rules cannot excuse his failure to file a timely notice of appeal." Lowry, 211 F.3d at 464. See Silivanch, 333 F.3d at 368-70.
See United States v. Alexander, No. 01-1042, 2003 WL 21223438, at *2 (2d Cir. May 23, 2003) (summary order) (citing United States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002) ("Where the district court's factual findings are premised upon credibility determinations, we grant particularly strong deference to those findings.")).
See id. at *2 ("We find no clear error in the district court's factual findings and uphold the district court's determination that Alexander knew of his right to appeal and affirmatively chose not to exercise it.").
476 F.3d 118 (2d Cir. 2007).
"If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." Fed.R.App.P. 4(a)(3).
See In re Johns-Manville, 476 F.3d at 120.
546 U.S. 12 (2005).
See In re Johns-Manville, 476 F.3d at 124 ("[W]e conclude that Eberhart strongly indicates that we are to enforce that limit strictly, once it is properly invoked.").
Id. (first alteration added, footnote omitted).
The Johns-Manville court relied, in large part, on Silivanch where the court was as equally unforgiving of attorney error. The Silivanch court reconciled the Supreme Court's decision in Pioneer with attorney incompetence as follows:
But despite the flexibility of "excusable neglect" and the existence of the four-factor test in which three of the factors usually weigh in favor of the party seeking the extension, we and other circuits have focused on the third factor: "the reason for the delay, including whether it was within the reasonable control of the movant." Pioneer, 507 U.S. at 395, 113 S.Ct. 1489. We have noted that the equities will rarely if ever favor a party who "fail[s] to follow the clear dictates of a court rule" and held that where "the rule is entirely clear, we continue to expect that a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test."
Silivanch, 333 F.3d at 366-67 (quoting Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250-51 (2d Cir. 1997) (per curiam)) (footnote omitted).
Relying in large part on Johns-Manville and Silivanch, this Court similarly cannot countenance the type of attorney error present here. A quick research session would have revealed that the three-day add-on found in Rule 26(c) does not apply to cases involving judgments. I do realize that the delay here was only two days and that the denial of plaintiff's motion might therefore seem unduly harsh. But the time limits for appeals must be strictly preserved for the greater good. While this case involved a two-day delay, the next case may involve a two-week delay, and the next a two-month delay. To erode the appellate time limits case-by-case would eventually render them meaningless. To avoid such a result, the time limits must be enforced strictly, even if the effect on a particular litigant is harsh. Accordingly, counsel's error in misinterpreting the applicable time limit cannot be considered excusable neglect or good cause. Plaintiff's motion must therefore be denied.
C. The March 1, 2007 Order Does Not Extend the Time for Filing a Notice of Appeal
On January 11, 2007, one day after plaintiff filed a notice of appeal, she submitted a Verified Bill of Costs amounting to $10,161.85, which was erroneously entered on the Court's Electronic Case Filing docketing system. On February 27, 2007, defendants sent this Court a letter objecting to the taxation of costs by plaintiff. When the Court inquired into the matter, it was informed that the Bill of Costs was docketed in error and that it should not have been accepted as the case is now on appeal. Having been so informed, I issued an Order on March 1, 2007, directing the Clerk of the Court to remove the Verified Bill of Costs from the docket sheet, which was done.
Plaintiff now contends that defendants' February 27, 2007 letter should be viewed as a motion to amend the judgment under Federal Rule of Civil Procedure 59. If so viewed, plaintiff's time to appeal would be tolled during the pendency of such a motion. This argument is unpersuasive. Plaintiff's Bill of Costs was docketed in error. Accordingly, defendants were not required to make any substantive arguments in order to have the Bill of Costs struck from the record. That defendants may have done so does not convert their February 27th letter into a motion under Rule 59(e). Plaintiff's suggestion to the contrary is hereby rejected.
III. CONCLUSION
For the foregoing reasons, plaintiff's motion to file a late notice of appeal is hereby denied. The Clerk of the Court is directed to close this motion [Document # 3].
SO ORDERED.