Opinion
Case No. 3:02CV7430
March 12, 2004
ORDER
This is an employment discrimination case in which defendant's motion for summary judgment was granted on November 5, 2003. Pending is plaintiff's motion for an extension of time to file a notice of appeal. For the following reasons, plaintiff's motion shall be denied.
BACKGROUND
On November 5, 2003, this court entered judgment in favor of defendant pursuant to an order granting defendant ArvinMeritor Inc.'s motion for summary judgment on plaintiff's claim of employment discrimination. Pursuant to Fed.R.App.P. 4(a)(1)(A), plaintiff had until December 5, 2003, to file an appeal. Plaintiff claims that, in a letter dated November 26, 2003, plaintiff's attorney, John R. Folkerth Jr., advised plaintiff of the judgment and informed him that Folkerth declined to represent him on appeal. The letter further indicated that Folkerth would, if plaintiff desired, file a notice of appeal while plaintiff sought new representation in order to ensure plaintiff would not miss the thirty day deadline for filing an appeal.
Plaintiff claims that, after receiving Folkerth's letter, he called Folkerth's office on November 29, 2003. No one being in the office, plaintiff left a message on an answering machine instructing Folkerth to file a notice of appeal while plaintiff sought other representation. Folkerth denies ever having received the message and conjectures he must have accidentally erased it from his voicemail.
By letter dated December 8, 2003, Folkerth informed plaintiff he did not file a notice of appeal because plaintiff never notified him to do so. On receipt of the letter, plaintiff claims he telephoned Folkerth, at which point Folkerth denied ever having received instruction from plaintiff to file a notice of appeal.
Nearly a month later, on January 5, 2004, plaintiff submitted a Motion for Extension of Time to File Notice of Appeal Nunc Pro Tunc. Plaintiff claims that, under Fed.R.App.P. 4(a)(5)(A), he is entitled to an extension to file a notice of appeal due to excusable neglect. Defendant opposes the motion on the basis that no excusable neglect has been shown.
DISCUSSION
Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure provides that the time for filing a notice of appeal in a civil case is "30 days after the judgment or order appealed from is entered." FED. R. APP. P. 4(a)(1)(A). Plaintiff wants to appeal a decision entered on November 5, 2003, granting defendant's motion for summary judgment. Plaintiff did not file a notice of appeal until January 5, 2004. Accordingly, plaintiff did not meet the requirement of Fed.R.App.P. 4(a)(1)(A).
Under Fed.R.App.P. 4(a)(5)(A), however, 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.
Plaintiff's motion was filed January 5, 2003, which is thirty days after expiration of the initial thirty day period. Because the motion was submitted within the requisite time period, the only issue in this case is whether plaintiff can show either excusable neglect or good cause.
While plaintiff technically had until January 4, 2004 to file his motion for an extension, that day fell on a Sunday. The next business day was January 5, 2004, and he filed his motion on that day. Therefore, the motion for extension was timely filed, pursuant to Fed.R.Civ.P. 6(a).
I. Good Cause
It is well established that an extension of time for a notice of appeal is only granted "in unique and extraordinary circumstances." Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989). An extension of time due to a showing of good cause is only granted when the request is filed before the thirty day time period under Fed.R.App.P. 4(a) expires. Id. A showing of good cause also only "applies in situations in which there is no fault — excusable or otherwise." FED. R. APPP. 4(a)(5)(A)(ii) (advisory committee's note).
In this case plaintiff's request for an extension was filed outside the initial thirty day period. Because the request was filed late, plaintiff cannot make a showing of good cause.
II. Excusable Neglect
As this court recently recognized in Villa v. Village of Elmore, 252 F. Supp.2d 492, 494 (N.D. Ohio 2003) (citations omitted): "Compliance with the time requirement for filing a notice of appeal is both 'mandatory and jurisdictional.' The standard for excusable neglect has been consistently been held to be 'strict' and can be met only in extraordinary cases."
The Supreme Court interpreted the phrase "excusable neglect" as used in the procedural rule authorizing a bankruptcy court to accept late filings. See Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 388 (1993). Pioneer also applies to civil appeals under Fed.R.App.P. 4(a). See United States v. Thompson, 82 F.3d 700, 702 (6th Cir. 1996).
Pioneer established a two-prong test for evaluating claims of excusable neglect: first, the court must determine whether the untimely filing was delayed by "neglect", 507 U.S. at 388; and second, the court must determine whether the neglect was "excusable." Id at 395.
At issue initially is whether plaintiff's untimely filing of the notice to appeal was delayed by neglect. In reliance on the "ordinary meaning" of the term, Pioneer defined "neglect" as encompassing "late filings caused by inadvertence, mistake, or carelessness." Pioneer, 507 U.S. at 388. Plaintiff claims his notice of appeal was untimely filed because his counsel accidentally erased the message plaintiff left on his counsel's voicemail. Plaintiff's counsel's non-receipt of the accidentally erased message was caused by plaintiff's mistake, inadvertence, or carelessness. The delay, therefore, was caused by neglect.
At issue then is whether the neglect was excusable. Regarding the "excusable" inquiry, as the Supreme Court declared in Pioneer:
The determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [nonmovant], 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.
Of the four Pioneer factors, the first, second, and fourth weigh in favor of plaintiff. As to the first factor, there is no danger of prejudice to defendant should plaintiff's motion for an extension be granted. As to the second factor, plaintiff's motion for an extension was filed on January 5, 2003, the last day plaintiff had under Fed.R.App.P. 4(a)(5) to move for an extension. Although last minute, plaintiff's motion was received within the requisite time period expressly mentioned in Rule 4(a)(5). It cannot be said that satisfying a deadline proscribed by the applicable Federal Rule of Appellate Procedure will result in a detrimental impact on judicial proceedings. As to the fourth factor, there is no indication that either plaintiff or plaintiff's counsel acted other than in good faith.
The Pioneer factors, however, "do not carry equal weight; the excuse given for the late filing must have the greatest import." Lowry v. McDonnell Douglas Corp., 211 F.3d 475, 463 (8th Cir. 2000); see also 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). "While prejudice, length of delay, and good faith may have more relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry." Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001) (quoting Lowry, 211 F.3d at 463).
For the following reasons the third, most important Pioneer factor — the reason for the delay, including whether it was in the reasonable control of the movant — weighs heavily in favor of defendant. While neither the parties nor independent research has been able to uncover a case on all fours with the instant situation, there are factually analogous cases which lead me to conclude that the neglect in this case is in fact inexcusable.
In Thompson v. E.I. Dupont de Nemours Co., Inc., 76 F.3d 530 (4th Cir. 1996), plaintiff filed her notice of appeal three days after the expiration of the initial time limit set forth under Fed.R.App.P. 4(a)(1). Thompson, 76 F.3d at 531. She then filed a timely motion for an extension to file a notice of appeal, claiming she mailed a notice of appeal three days before the initial thirty day time period was set to expire, but that the postal service took too long to deliver the notice to the court. Id. at 532. The court, distinguishing between imprisoned litigants and other litigants, stated:
Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the [postal service]; and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the state the court received it.Id. at 534 (citing Houston v. Lack, 487 U.S. 266, 271 (1988)).
The court, affirming the district court's denial of plaintiff's motion for an extension, further declared that Thompson's attorney "failed to take any steps whatsoever to check on the letter's progress" and that the neglect was "nothing more that inexcusable run-of-the-mill inattentiveness by counsel." Thompson, 76 F.3d at 535.
In comparison, although the instant case involves a telephone message left on an attorney's voicemail rather than the mailing of a letter, it is clear that the plaintiff was wholly inattentive to whether counsel had received his instruction. Here, plaintiff failed to take any additional steps to ensure that his message had been received. He could have again tried to reach his attorney. Plaintiff, furthermore, could have contacted the court to see if his attorney had filed a timely notice of appeal on plaintiff's behalf. Plaintiff, however, chose to do neither.
Courts have also been unsympathetic to claims of "excusable neglect" for untimely filings when the proffered reason for the delay was due to the failure of fax and voicemail machines. In Pascuzzo v. Aetna, Inc., No. OO-CV-2464, 2004 WL 234373, *1 (E.D. Pa. Jan. 29, 2004), for instance, defendants filed a motion for an enlargement of time to file a motion for fees and costs pursuant to Fed.R.Civ.P. 6(b), which allows a time extension for "excusable neglect." The defendants contended that their reason for delay in filing a timely motion was due to their inability to receive faxes and voicemail messages from the court and from plaintiff's attorney, as those systems were being replaced. Id. at *2. The court stated the because defendants were aware that their fax and voicemail machines would be inoperable due to replacement, it was incumbent upon defendants to notify both the court and plaintiff's attorney that faxes and voicemail messages could not be received. Id.
Although Pascuzzo involved the "excusable neglect" language in Fed.R.Civ.P. 6, rather than Fed.R.App. 4, as in the instant case, the principle advanced in Pascuzzo applies here.
Courts have also not responded favorably to alleged communication problems between clients and attorneys. In Jin v. Metro. Life Ins. Co., No. 95 Civ. 4427 (DFE), 2003 WL 21436211, *1 (S.D.N.Y. June 20, 2003), plaintiff, pursuant to Fed.R.Civ.P. 4(a)(5), made a timely motion for a retroactive extension of time to file a notice of appeal. One of the alleged reasons for the initial delay was communication difficulties between plaintiff and her counsel. Id. at *4. Specifically, plaintiff's counsel claimed plaintiff was hard to reach because she had no telephone and would communicate only after receiving emails. Id.
As in the instant case, plaintiffs attorney offered to take responsibility for the untimely notice of appeal. Id. at *5. The court held that plaintiff ought to be blamed for her method of communicating with her attorney. Id. The court, furthermore, quoted from Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880)):
Petitioner voluntarily chose his 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 out system representative litigation, in which each party is deemed bound by the acts of his lawyer agent.Jin, at *5. These principles apply with equal force here. Plaintiff will be held accountable for the instant communication failure.
Plaintiff's failure to confirm receipt of his voicemail instructions superceded any intervening mistake on the part of his attorney. Had plaintiff called to check, a timely notice could have been filed. The determinative neglect was plaintiff's.
In light of the foregoing discussion, it is clear a strict standard is applied to all claims of excusable neglect under Fed.R.App.P. 4(a)(5)(A). Here, plaintiff was not sufficiently diligent in ensuring timely receipt of a request to file a notice of appeal. Plaintiff fails to offer a reasonable explanation why he did not follow up to see if his counsel had received his voicemail message. Merely leaving a message by voicemail is not adequate. The burden is on the party leaving the message to confirm that the message was received. Absent such diligence by plaintiff, mere allegations of an accidentally erased voicemail message will not constitute extraordinary circumstances capable of rising to the standard of excusable neglect.
Because plaintiff does not present such an extraordinary case sufficient to meet the standard of excusable neglect, the requirements of Rule 4(a)(5) have not been met. An extension of time to file a notice of appeal is therefore denied.
CONCLUSION
It is, therefore,
ORDERED THAT Plaintiff-appellant's motion for an extension of time to file a notice of appeal be, and hereby is, denied.
So ordered.