Opinion
No. 7:19-CV-148-D
2020-09-04
Pedro LOSA, Plaintiff, v. Marco GHISOLFI, Defendant.
Gary K. Shipman, Sara E Leopold, Shipman & Associates, LLP, 575 Military Cutoff Road, Suite 106, Wilmington, NC 28405, 910-762-1990, Fax: 910-762-6752, for Plaintiff. Caroline Bassett Warren, Buchanan Ingersoll & Rooney, 227 W. Trade Street, uite 600, Charlotte, NC 28202, 704-444-3371, Stanley Yorsz, Buchanan Ingersoll & Rooney, PC, Union Trust Building, 501 Grant Street, Suite 200, Pittsburgh, PA 15219-4413, 412-562-8841, Fax: 412-562-1041, Tory Ian Summey, Parker Poe Adams & Bernstein LLP, 620 South Tyron Street, Suite 800, Charlotte, NC 28202, 704-335-9036, 704-335-9036, for Defendant.
Gary K. Shipman, Sara E Leopold, Shipman & Associates, LLP, 575 Military Cutoff Road, Suite 106, Wilmington, NC 28405, 910-762-1990, Fax: 910-762-6752, for Plaintiff.
Caroline Bassett Warren, Buchanan Ingersoll & Rooney, 227 W. Trade Street, uite 600, Charlotte, NC 28202, 704-444-3371, Stanley Yorsz, Buchanan Ingersoll & Rooney, PC, Union Trust Building, 501 Grant Street, Suite 200, Pittsburgh, PA 15219-4413, 412-562-8841, Fax: 412-562-1041, Tory Ian Summey, Parker Poe Adams & Bernstein LLP, 620 South Tyron Street, Suite 800, Charlotte, NC 28202, 704-335-9036, 704-335-9036, for Defendant.
ORDER
JAMES C. DEVER III, United States District Judge On May 14, 2019, Pedro Losa ("Losa" or "plaintiff") filed a complaint against Marco Ghisolfi ("Ghisolfi" or "defendant") in New Hanover County Superior Court alleging a breach of contract claim and a quantum meruit claim [D.E. 1-1]. On August 9, 2019, Ghisolfi removed the case to this court [D.E. 1]. On December 3, 2019, the court dismissed the complaint for failure to state a claim upon which relief can be granted, but permitted Losa to file an amended complaint. See [D.E. 20]; [D.E. 27]. On December 13, 2019, Losa filed an amended complaint adding some facts and alleging the same claims [D.E. 21]. On January 10, 2020, Ghisolfi moved to dismiss the amended complaint [D.E. 24]. See Fed. R. Civ. P. 12(b)(6). On July 13, 2020, the court granted Ghisolfi's motion and dismissed the amended complaint with prejudice for failure to state a claim upon which relief can be granted [D.E. 30]. On July 14, 2020, the court entered judgment [D.E. 31].
Losa did not timely file his notice of appeal. See [D.E. 33]; Fed. R. App. P. 4(a)(1). On August 19, 2020, Losa moved for an extension of time to file his notice of appeal. See id. On August 27, 2020, Ghisolfi responded in opposition [D.E. 36]. As explained below, the court denies Losa's motion and dismisses Losa's notice of appeal as untimely.
I.
On July 14, 2020, the court entered judgment. See [D.E. 31]. On August 14, 2020, Losa's counsel's paralegal, Barbara Hamme ("Hamme"), attempted to upload a notice of appeal to the court's Case Management/Electronic Case Files system ("CM/ECF"). See [D.E. 33] ¶ 1; Hamme Aff. [D.E. 33-1] ¶¶ 4–8. Hamme paid the required filing fee and received a receipt but did not receive confirmation that the notice had been docketed. See [D.E. 33] ¶¶ 2–3. On August 19, 2020, Hamme called the clerk's office for the United States District Court for the Eastern District of North Carolina to confirm receipt of the notice of appeal. The clerk's office confirmed receipt of the fee, but informed Hamme that CM/ECF "did not show the Notice of Appeal itself." Id. at ¶ 3: see Hamme Aff. at ¶ 8. That same day, Losa's counsel filed a motion under Rule 4(a)(5) of the Federal Rules of Appellate Procedure seeking an extension of time to file the notice of appeal, alleging that a "technical failure" prevented the clerk's office from receiving the August 14, 2020 filing. See [D.E. 33] ¶¶ 4, 7. Along with the motion, Losa submitted a notice of appeal dated August 14, 2020. See Ex. A [D.E. 33-1] 6–7.
In a civil suit, a notice of appeal must be filed within 30 days of the entry of the judgment. See Fed. R. App. P. 4(a)(1). Rule 4(a)(5) permits a district court to extend the time to file a notice of appeal where the party (1) moves for an extension no later than 30 days after the expiration of Rule 4(a)(1)'s deadline and (2) shows "excusable neglect or good cause." Fed. R. App. P. 4(a)(5)(A). The "good cause" standard applies only to Rule 4(a)(5) motions filed before the expiration of Rule 4(a)(1)'s initial 30-day period. See Fed. R. App. P. 4(a) cmt. n.(a)(5); Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 532 (4th Cir. 1996). Courts evaluate timely Rule 4(a)(5) motions filed after Rule 4(a)(1)'s period has expired under the "excusable neglect" standard. See Thompson, 76 F.3d at 532.
The court entered final judgment on July 14, 2020, and Rule 4(a)(1)'s 30-day period for filing a notice of appeal ended on August 13, 2020. See [D.E. 31]; Fed. R. App. P. 26(a)(1). Losa did not move for an extension of time until August 19, 2020. See [D.E. 33]. Because Losa filed his Rule 4(a)(5) motion after, but within 30 days of, August 13, 2020, the motion is timely under Rule 4(a)(5)(A)(i). Accordingly, the court considers the motion solely under the "excusable neglect" standard. See Thompson, 76 F.3d at 532 ; Fed. R. App. P. 4(a)(5)(A)(ii).
To the extent that Losa argues his motion is supported by "good cause," the court rejects Losa's argument. See [D.E. 33] ¶ 7; Thompson, 76 F.3d at 532.
"Neglect" encompasses "late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Whether neglect is "excusable" is "an equitable [determination], taking account of all relevant circumstances surrounding the party's omission," including "the danger of prejudice to the [nonmoving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id. at 395, 113 S.Ct. 1489 ; see Thompson, 76 F.3d at 533 (applying Pioneer factors to Rule 4(a)(5) ). The most important factor for determining whether "neglect" is "excusable" is "the reason for the failure to file the notice of appeal within thirty days of the entry of judgment." Thompson, 76 F.3d at 534 ; see Fernandes v. Craine, 538 F. App'x 274, 276 (4th Cir. 2013) (per curiam) (unpublished).
" ‘Excusable neglect’ is not easily demonstrated, nor was it intended to be." Thompson, 76 F.3d at 534 ; see Agnew v. United Leasing Corp., 680 F. App'x 149, 155 (4th Cir. 2017) (unpublished). "[A] district court should find excusable neglect only in the extraordinary cases where injustice would otherwise result." Thompson, 76 F.3d at 534 (quotation omitted). " ‘[A] mere concession of palpable oversight or administrative failure generally has been held to fall short of the necessary showing.’ " Id. (quoting In re O.P.M. Leasing Serv., Inc., 769 F.2d 911, 917 (2d Cir. 1985) (Friendly, J.)). Moreover, even where a party is able to demonstrate excusable neglect, "whether to grant an enlargement of time still remains committed to the discretion of the district court" Id. at 532 n.2.
In support of his motion, Losa asserts that his paralegal, Hamme, timely uploaded the notice of appeal to CM/ECF, but that "a technical failure" prevented the clerk's office from receiving the filing. [D.E. 33] ¶¶ 4, 7.
The first two Pioneer factors, prejudice and delay, ordinarily favor the moving party. See Symbionics Inc. v. Ortlieb, 432 F. App'x 216, 219 (4th Cir. 2011) (per curiam) (unpublished); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003). So too here. In fact, Ghisolfi does not assert that Losa's late filing caused prejudice, see [D.E. 36] at 2–5, and there has been no material delay in the proceedings. The fourth factor, whether the movant acted in good faith, is "rarely material ... in excusable neglect cases." Symbionics, 432 F. App'x at 219 ; see Silivanch, 333 F.3d at 366. Moreover, nothing in the record indicates that Losa failed to act in good faith. See [D.E. 33] ¶¶ 1–7. Hence, these three factors favor Losa.
The third and most important factor, Losa's reason for the delay, favors Ghisolfi. See Thompson, 76 F.3d at 534 ; Fernandes, 538 F. App'x at 276. Losa alleges that Hamme "timely uploaded" the notice of appeal on August 14, 2020. [D.E. 33] ¶ 1. However, Losa's characterization of the filing as "timely" is incorrect because Losa miscalculated the Rule 4(a)(1) time period. The notice of appeal was due on August 13, 2020, 30 days after the July 14, 2020 entry of judgment. See [D.E. 31]. As such, Losa's first filing attempt already was one-day late. Moreover, nothing explains why Losa waited until August 14, 2020, to attempt to file a notice of appeal. Given the nearly ministerial nature of filing a one-page notice of appeal, the court would have expected counsel to seek to file a notice of appeal earlier than August 14, 2020. Furthermore, although Losa plausibly alleges that the reason for the subsequent delay was a "technical failure," Losa's "total dependence on a computer application ... is neither extraneous to nor independent of counsel's negligence." Symbionics, 432 F. App'x at 220 (quotations omitted); see Smith v. Look Cycle, USA, 933 F. Supp. 2d 787, 790–92 (E.D. Va. 2013). If Hamme failed to receive confirmation from CM/ECF that the notice of appeal was timely filed, Losa's counsel could have "personally travel[led] to the courthouse to [ensure] that the notice [was] stamped ‘filed.’ " Thompson, 76 F.3d at 534 (quoting Houston v. Lack, 487 U.S. 266, 271, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) ). Instead, Losa's calendering error and poor handling of technical difficulties are "administrative failure[s]" that are neither extraordinary nor unusual. Thompson, 76 F.3d at 534. Losa's neglect is precisely the sort of "run-of-the-mill inattentiveness by counsel" that the Fourth Circuit "has consistently declined to excuse." Symbionics, 432 F. App'x at 220 ; see Agnew, 680 F. App'x at 155 ; Warren v. Young, 469 F. App'x 282, 283 (4th Cir. 2012) (per curiam) (unpublished); Thompson, 76 F.3d at 535. Accordingly, the court denies Losa's motion.
II.
In sum, the court DENIES Losa's motion for extension of time [D.E. 33], and DISMISSES as untimely the notice of appeal [D.E. 32].
SO ORDERED . This 4 day of September 2020.