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concluding that "the governing standard is ‘excusable neglect’ rather than ‘good cause’ " where the failure to meet the deadline was attributable to the client's loss of contact with her attorney
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95 Civ. 4427 (DFE).
June 20, 2003.
OPINION AND ORDER
Pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure, plaintiff Min Jin has made a timely motion for a retroactive extension of time to file a Notice of Appeal from the judgment entered in favor of defendant Metropolitan Life Insurance Company ("MetLife").
Ms. Jin's motion is supported by an Affidavit from her counsel, Peter G. Eikenberry, dated May 16, 2003, and its annexed Exhibits 1 through 3. I will refer to certain of those exhibits as "Exh. ___." On May 22, MetLife submitted an opposing memorandum of law and the Declaration of its counsel, Steven E. Obus ("Obus Decl."). On May 23, Mr. Eikenberry submitted a reply.
For the reasons stated below, I deny the motion for extension of time.
BACKGROUND
Ms. Jin suffers from depression and is receiving Social Security disability benefits. Mr. Eikenberry has served as Ms. Jin's attorney throughout two appeals and two trials in this case. At the second trial, the jury rejected Ms. Jin's allegations and returned a verdict in favor of MetLife on March 14, 2003. On March 20, I signed the Judgment dismissing the complaint, and I mailed a copy to both attorneys. The docket clerk entered the Judgment on the docket on March 25, and also mailed a copy to both attorneys, along with a detailed form letter about the right to appeal. (Exh. 2, two pages.) On plaintiff's copy of the Judgment, a person (presumably Mr. Eikenberry or someone in his office) wrote "Note File" and circled the stamped notice, which read: "THIS DOCUMENT WAS ENTERED ON THE DOCKET ON 3/25/03." The accompanying form letter from the docket clerk cited Rule 4(a)(1) of the Federal Rules of Appellate Procedure, and made clear that any party wishing to file a Notice of Appeal was required to do so within 30 days of the entry of the Judgment. Since March has 31 days, the deadline for plaintiff to file a Notice of Appeal was April 24. (Mr. Eikenberry does not contend that he forgot that March has 31 days.)
Mr. Eikenberry and his office failed to calendar the deadline. He explains:
A number of circumstances combined to interfere with the more or less smooth operation of my office during this period and in particular the handling of the calendaring of a notice of appeal date as follows:
a. I moved my offices from 63 Wall Street to 74 Trinity Place commencing on Friday, March 21, 2003, and
b. The move was not completed until Thursday March 27, and
c. On March 25, I terminated my secretary and a new secretary commenced on March 26, and
d. My associate Lisa Brubach resigned to accept another position and left on April 15, and
e. I had several deadlines the week of April 21 including an important letter hand delivered to Judge Carter on April 21, an appeal brief filed on April 23 and a post hearing arbitration brief filed on April 25, and
f. The files were not appropriately arranged until at least the end of April.
(Eikenberry Aff. ¶ 8.) He goes on to say that, despite these problems, he would normally have filed on time, but Ms. Jin was "not easy to reach" and took a long time before "making the decision to appeal." ( Id. at ¶¶ 9-22, esp. 9, 21, and 22.) It is unclear exactly when she communicated her decision to him.
On April 25 (and perhaps earlier), he attempted to locate his copy of the Judgment, and could not find it. He relied solely on his memory on April 25 when he prepared the Notice of Appeal, in which he erroneously wrote that the Judgment had been entered on "March 28, 2003." ( Id. at ¶ 4.)
A few days later, he realized his mistake and, if I may use the parlance of golf, he called the penalty on himself. This is a recent example of the candor and civility displayed by both Mr. Eikenberry and Mr. Obus throughout their involvement in this lengthy litigation. Even though the clerk's office had accepted and docketed the Notice of Appeal, Mr. Eikenberry telephoned Mr. Obus on April 30 and informed him that the Notice of Appeal had been filed one day late. He asked if MetLife would consent to the late filing; on the next day, Mr. Obus advised him that MetLife would not consent. (Obus Decl. ¶ 3.)
On May 29, the Clerk of the Court of Appeals filed a dismissal of Ms. Jin's appeal, because she had failed to file the required papers within 10 days after filing the Notice of Appeal. This has no effect on my decision whether to grant or deny the pending motion. The Court of Appeals was apparently unaware that the Notice was untimely, and unaware that the plaintiff had a motion pending before me.
DISCUSSION
The deadline for filing a Notice of Appeal is "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403 (1982) (per curiam); Rezzonico v. H R Block, Inc., 182 F.3d 144, 150 (2d Cir. 1999). Rule 4(a)(5) of the Federal Rules of Appellate Procedure provides that:
The 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) expires; 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.
The Advisory Committee Notes for the 2002 Amendments to Rule 4 explain that "excusable neglect" and "good cause" are distinctly different standards:
The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.
Advisory Committee Notes to Fed.R.App.P. 4, Subdivision (a) (5)(A) (ii), 2002 Amendments.
In the present motion before me, it appears to be undisputed that the governing standard is "excusable neglect" rather than "good cause." The failure to file a timely notice of appeal was not occasioned by anything beyond the control of Ms. Jin or Mr. Eikenberry. (I note that I do not fault plaintiff for taking more than two weeks to prepare and file her motion; May 16 was well within Rule 4(a)(5)'s 30-day grace period for filing such a motion.)
The phrase "excusable neglect" also appears in Bankruptcy Rule 9006(b)(1), which empowers a bankruptcy court to permit a late filing if the failure to comply with a deadline "was the result of excusable neglect." In that context, the Supreme Court stated in 1993 that the "excusable neglect" standard is "an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer Investment Services Company v. Brunswick Associated Limited Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 1498 (1993). I find it significant that the Supreme Court said "we give little weight to the fact that counsel was experiencing upheaval in his law practice." Id., 507 U.S. at 398, 113 S.Ct. at 1499. Pioneer listed four factors that a court must consider before ruling on a claim of "excusable neglect":
[1] the danger of prejudice to the [non-movant], [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.Id. (emphasis added). The Second Circuit applies the Pioneer factors to Rule 4(a)(5) of the Federal Rules of Appellate Procedure. United States v. Carson, 52 F.3d 1173, 1180 (2d Cir. 1995).
Of the four Pioneer factors, the first, second, and fourth weigh in favor of plaintiff. I see no danger of prejudice to MetLife. The length of the delay was minimal, and would not have any appreciable impact on judicial proceedings. Nothing suggests that either Ms. Jin or Mr. Eikenberry acted other than in good faith. However, the fact that the Notice of Appeal was only one day late does not in and of itself constitute excusable neglect. See, e.g., Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th Cir.), cert. denied, 531 U.S. 929 (2000).
The third Pioneer factor is often the most important — "the reason for the delay, including whether it was within the reasonable control of the movant." Weinstock v. Cleary, Gottlieb, Steen, Hamilton, 16 F.3d 501, 503 (2d Cir. 1994); Active Glass Corp. v. Architect Ornamental Iron Workers Local, 899 F. Supp. 1228, 1231 (S.D.N.Y. 1995) (Leisure, J.); Mason v. Schriver, 1999 WL 498221, *2-3 (S.D.N.Y., July 13, 1999) (Preska, J.). The Eighth Circuit has said: "The four Pioneer factors do not carry equal weight; the excuse given for the late filing must have the greatest import." Lowry, 211 F.3d at 463. Lowry was cited by the First Circuit in the following passage:
Although the Pioneer standard is more forgiving than the standard in our prior case law, there still must be a satisfactory explanation for the late filing. We have observed that "`. . . [w]hile prejudice, length of delay, and good faith might have more relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry. . . .'" Hosp. del Maestro, 263 F.3d at 175 [(1st Cir. 2001)] (quoting Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 263 (8th Cir. 2000)). This focus comports with the Pioneer Court's recognition that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect." 507 U.S. at 392, 113 S.Ct. at 1496.Graphic Communications Int'l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5-6 (1st Cir. 2001).
Mr. Eikenberry's affidavit offers two reasons for the delay. (1) He was changing secretaries and moving to a different building; in those circumstances he failed to calendar the appeal deadline, and he was unable to put his hands on the copies of the Judgment mailed to him by me and by the docket clerk. (Eikenberry Aff. ¶ 4-8.) (2) He and Ms. Jin had difficulty reaching a decision whether or not to appeal. The difficulty was both substantive and "procedural" — "Ms. Jin is not easy to reach; she does not have a telephone and will only call sometime after receiving an email from [her attorney]." ( Id. ¶¶ 21-22.) After receiving Mr. Obus's May 22 discussion of the case law, Mr. Eikenberry placed more emphasis on the second reason. (5/23/03 Reply, p. 2.)
I find the first reason to be inadequate. Mr. Eikenberry knew that his consultations with his client were bringing him "to the wire." Ibid. He knew that he was unable to put his hands on the copies of the Judgment, which he knew had been entered sometime after the March 14 jury verdict. He could have easily verified the date of the entry by contacting the Clerk's office or by contacting Mr. Obus or the other attorneys at Proskauer Rose, LLP.
Pioneer was a 5-4 decision, and it turned on a factor not present in Ms. Jin's case — there was "a `dramatic ambiguity' in the notification" that triggered the deadline. 507 U.S. at 398, 113 S.Ct. at 1500. The Second Circuit has said that, where the deadline is unambiguous, "we continue to expect that a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test." Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 251 (2d Cir. 1997).
In Worthy v. General Longshoremen's Workers Int'l, 2003 WL 260520 (E.D.La., Feb. 4, 2003), the Notice of Appeal was one day late because counsel erroneously excluded legal holidays when computing the 30-day period. Judge Vance ruled that this was "a garden variety mistake," and she denied the motion for extension. Id. at *2. In an even more recent case, Villa v. Village of Elmore, 252 F. Supp.2d 492 (N.D.Ohio 2003), the judgment was entered on December 3, 2002, and the Notice of Appeal was filed on January 3, 2003, one day late. Judge Carr denied a timely motion for a retroactive extension, and wrote: "Miscalculation of the time period does not rise . . . to the standard of excusable neglect." Id. at 494.
Earlier this year, Judge Kaplan and I denied a two-day extension in a case which was more sympathetic than Ms. Jin's, Dix v. Saks, Inc., 2003 WL 194210 (S.D.N.Y., Jan. 19, 2003) (a pro se employment discrimination case). Ms. Dix received, on June 19, 2002, a right-to-sue letter from the U.S. Equal Employment Opportunity Commission, which warned her: "Your lawsuit must be filed WITHIN 90 DAYS from your receipt of this Notice." Id. at *1. She neglected to note that July and August have 31 days, and that her deadline was therefore September 17. She filed her complaint on September 19. Adopting my recommendation, Judge Kaplan dismissed her complaint on the ground that it was not timely filed. Dix v. Saks, Inc., 2003 WL 21223289 (S.D.N.Y., May 22, 2003).
The arguments for extension are less persuasive in Ms. Jin's case than they were in Dix. First, Ms. Dix was a pro se litigant. Second, she equated 90 days with three months, an understandable mistake for a non-lawyer. Third, the deadline in Dix marked the running of a statute of limitations and thus was eligible for equitable tolling, whereas the 30-day deadline for filing a notice of appeal is "mandatory and jurisdictional." Griggs, 459 U.S. at 61, 103 S.Ct. at 403; Rezzonico, 182 F.3d at 150.
I turn now to plaintiff's second reason — Ms. Jin's indecision in deciding whether to appeal, and her delays in communicating with her attorney. Mr. Eikenberry's May 23 letter, at page 2, says that missing the deadline "was as much or more related to the dynamics of [his] necessary cons[u]l[t]ations [he] had with Ms. Jin — as it had to do with any office conditions." In many cases it is difficult to decide whether to appeal. That difficulty has not been recognized as a factor in "excusable neglect." See, e.g., Smith v. Lehigh Valley R. Co., 174 F.2d 592 (2d Cir. 1949) (appeal dismissed where Notice of Appeal was not filed within 30 days, although delay was due to indecision as to whether appeal should be taken).
Mr. Eikenberry says that the late filing was his fault, and that he "was obviously responsible for the neglect in not filing timely." (Eikenberry Aff. ¶ 26.) But I find that part of the blame ought to be placed on Ms. Jin personally. Her practice of communicating with her lawyer only by e-mail, and not always promptly, exacerbated the delays caused by her uncertainty about whether she wanted to appeal.
In any event, Pioneer says:
. . . . In Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), we held that a client may be made to suffer the consequence of dismissal of its lawsuit because of its attorney's failure to attend a scheduled pretrial conference. In so concluding, we found "no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client." Id., at 633, 82 S.Ct., at 1390. To the contrary, the Court wrote:
"Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have `notice of all facts, notice of which can be charged upon the attorney.'" Id., at 633-634, 82 S.Ct., at 1390 (quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1880)).
. . . . This principle applies with equal force here and requires that respondents be held accountable for the acts and omissions of their chosen counsel. Consequently, in determining whether respondents' failure to file their proofs of claim prior to the bar date was excusable, the proper focus is upon whether the neglect of respondents and their counsel was excusable.Pioneer, 507 U.S. at 396-97, 113 S.Ct. at 1499 (emphasis in the original). In Garcia-Warner v. Delta Air Lines, Inc., No. 96 Civ. 844, 1998 U.S. Dist. LEXIS 17981 (E.D.N.Y. Oct. 28, 1998), Judge Raggi, when she was a District Judge, denied an extension where the Notice of Appeal was apparently four days late. She wrote: "The conduct of an attorney is normally imputed to the client." Id. at *8.
I close by repeating that Ms. Jin was personally responsible for failing to communicate a firm decision to appeal well before the deadline. I realize that she suffers from depression, but she must have been a difficult client. (On the eve of the first trial, she dramatically changed her testimony and revealed new witnesses.) She is in no position to find fault with Mr. Eikenberry, who gave her devoted representation for more than three years.
CONCLUSION
For the reasons stated above, I deny Ms. Jin's motion for extension of time to file a Notice of Appeal. I am returning, by mail, Mr. Eikenberry's check for the fee for the proposed new Notice of Appeal.