Opinion
Civil Action No. 00C-06-156 SCD
Submitted: November 28, 2001
Decided: December 3, 2001
ORDER
On this 3rd day of December 2001, upon defendant Fairchild Aircraft Incorporated's ("FAI") Motion for an Extension of Time to File an Application for Certification of an Interlocutory Appeal, it appears that:
(1) On November 16, 2001, this Court issued a memorandum opinion denying FAI's motion to dismiss. The opinion was inaccurately dated November 15, 2001. FAI's Delaware counsel received a copy of the opinion on November 16, 2001. He immediately faxed a copy to his Texas co-counsel and they spoke about the possibility of an interlocutory appeal. FAI admits miscalculating the deadline to file as November 30, 2001, instead of November 25, 2001. However, since the opinion was incorrectly dated the deadline was actually November 26, 2001. After recognizing its error, FAI filed this motion on November 28, 2001, two days after the actual deadline expired. FAI requests that (1) the deadline to file an application for an interlocutory appeal be extended until November 28, 2001; and (2) that its application be considered filed as of November 28, 2001.
(2) Supreme Court Rule 42 governs interlocutory appeals. Under that rule, an application for an interlocutory appeal "shall be served and filed within 10 days of the entry of the order from which the appeal is sought or such longer time as the trial court, in its discretion, may order for good cause shown." "[A]ll time periods under this rule should be calculated pursuant to Supreme Court Rule 11." Supreme Court Rule 11 does not exclude intervening weekends and holidays from the computation when the period of time prescribed is less than 11 days. Finally, "the day of the act . . . after which the designated period of time begins to run shall not be included."
Supr. Ct. R. 42(c)(i).
Supr. Ct. R. 42(a); Supr. Ct. R. 11.
Supr. Ct. R. 11(a).
Id.
(3) In the case at bar, FAI failed to comply with the filing deadlines of Supreme Court Rules 42 and 11. Starting on November 17, 2001, the day after the opinion was actually issued, FAI had ten consecutive days, including weekends and the two-day Thanksgiving holiday, to file an application for certification of an interlocutory appeal. FAI failed to file an application by the deadline of November 26, 2001. Unless FAI can show good cause why an extension should be granted, this motion will be denied.
Supr. Ct. R. 42(c)(i).
(4) FAI asserts the following reasons for the good cause exception: (1) the delay in receipt of the opinion; (2) travel schedules and the Thanksgiving break during which counsel did not discuss the opinion for a second time; and (3) the miscalculation of the filing deadline. Because of this application, I reviewed the circumstances of the docketing of the decision. I discovered that the decision was misdated, it was, in fact, issued and docketed on November 16, 2001. Under the totality of circumstances, and the minimal nature of the delay, the request for extension is GRANTED.
(5) FAI's application for certification of an interlocutory appeal is considered filed on November 28, 2001. Under Supreme Court Rule 42(c)(ii), plaintiffs have ten days to respond. Accordingly, the deadline for plaintiffs to respond to FAI's application is December 13, 2001.
IT IS SO ORDERED.