Opinion
04 Civ. 00543 (JCF).
July 21, 2006
MEMORANDUM AND ORDER
Alonso Myers brought this action alleging that his employer, the New York City Human Rights Commission (the "Commission") discriminated against him on the basis of race and disability. The parties consented to referral of the case to me for all purposes, including determination of dispositive motions, pursuant to 28 U.S.C. § 636(c). Following the completion of discovery, the Commission moved for summary judgment, and in an opinion dated February 15, 2006, I granted that motion and directed the Clerk of Court to enter judgment dismissing the complaint. Myers v. New York City Human Rights Commission, No. 04 Civ. 00543, 2006 WL 344754, at *14 (S.D.N.Y. Feb. 15, 2006). Judgment was entered on February 16, 2006.
On April 14, 2006, Mr. Myers, who had previously been represented by counsel, submitted a pro se notice of appeal, together with a motion pursuant to Rule 4(a) (5) of the Federal Rules of Appellate Procedure for leave to file the notice of appeal after the time for doing so had lapsed. In the section of the motion form directing the litigant to "[e]xplain here the `excusable neglect' or `good cause' which led to your failure to file a notice of appeal within the required number of days," Mr. Myers stated: "Plaintiff is no longer represented by the firm of Rawlins Gibbs. Plaintiff is currently seeking `proper' legal counsel to represent him on the Appeal of the instant matter." (Motion for Extension of Time to File a Notice of Appeal).
Discussion
Pursuant to Rule 4(a) (1) of the Federal Rules of Appellate Procedure, a notice of appeal must be filed within thirty days after entry of the judgment appealed from with certain exceptions, none of which are applicable here. Nevertheless, Rule 4(a) (5) (A) provides that the district court may extend the time to file a notice of appeal if the party seeking to appeal moves for such relief within thirty days of the date when the notice of appeal originally should have been filed and demonstrates that the failure to meet the deadline was the result of excusable neglect or good cause. Mr. Myers has met the first of these criteria, since he submitted his motion within sixty days after judgment was entered.
The advisory committee notes to the rule observe that "[t]he good cause and excusable neglect standards have `different domains.'" Fed.R.App.P. 4(a) (5) (A) (ii) advisory committee's note (2002 amendments) (quoting Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232 (7th Cir. 1990)). While excusable neglect applies in situations where there is fault, the good cause standard may be invoked where the cause for missing the deadline was entirely beyond the control of the moving party, for example, where the Postal Service fails to deliver the notice of appeal.Id. Here, Mr. Myers has not suggested that he failed to file the notice of appeal due to any such extrinsic factor, and his conduct must therefore be analyzed under the excusable neglect standard.
Courts evaluating excusable neglect generally take into account (1) potential prejudice to the non-moving party, (2) the length of the delay and the resulting impact on judicial proceedings, (3) the reason for the delay, including the extent to which it was within the control of the moving party, and (4) whether the moving party acted in good faith. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003). The first, second, and fourth factors usually favor the moving party. The delay could not have exceeded thirty days beyond the deadline to appeal or the motion would be barred altogether. Since the delay is necessarily brief, the likelihood of prejudice to the nonmoving party is minimal. Indeed, in this case the Commission has indicated that it does not oppose Mr. Myers's motion. And, it is rare that the moving party has not acted in good faith. Nevertheless, courts focus on the third factor — the reason for the delay — and rarely grant an extension where the moving party has simply failed to follow a straightforward rule. See id. at 366-67.
In this case, the only basis Mr. Myers has offered for missing the deadline is the fact that he is seeking new counsel because the attorneys who represented him in the district court proceedings are no longer acting on his behalf. A party's pro se status is relevant in determining whether there has been excusable neglect. See United States v. Taylor, No. 97 Cr. 490, 1998 WL 118173, at *2 (S.D.N.Y. March 16, 1998). However, it does not by itself excuse a litigant from complying with procedural rules. See Chiulli v. Internal Revenue Service, No. 03 Civ. 6670, 2005 WL 3021179, at *3 (S.D.N.Y. Sept. 21, 2005) (citing cases). Consequently, the absence of representation does not qualify as excusable neglect. See Straehle v. INA Life Insurance Co., No. CV-01-7180, 2005 WL 3388612, at *3 (E.D.N.Y. Dec. 8, 2005) (pro se status and "garden variety claim of ignorance of the law" not excusable neglect); Chiulli, 2005 WL 3021179, at *2-3 (pro se plaintiffs's travel plans and lack of knowledge of filing deadline not excusable neglect);Bass v. NYNEX, No. 02 Civ. 5171, 2004 WL 2674633, at *3 (S.D.N.Y. Nov. 23, 2004) (pro se plaintiff's job schedule, need to read lengthy opinion, and desire to confer with counsel not excusable neglect). Mr. Myers, then, has not established excusable neglect and therefore does not qualify for an extension of time to file a notice of appeal under Rule 4(a) (5). Conclusion
For the reasons set forth above, the plaintiff's motion to file a notice of appeal out of time is denied.
SO ORDERED.