Opinion
Case No. 2:98CV380K
September 8, 2000.
ORDER
Before the court is the Individual Relators' and Plaintiffs' Motion for Extension of Time to File Notice of Appeal. The court has read the parties' memoranda and other materials and has further considered the law and facts relating to this motion. The court has determined that oral argument would not materially assist the determination of this motion. Now being fully advised, the court renders the following Order.
I. BACKGROUND
On April 28, 2000, this court entered a Judgment against the Individual Relators and Plaintiffs ("Plaintiffs"), and on June 29, 2000, sixty-two days later, Plaintiffs filed a Notice of Appeal. On July 12, 2000, Defendant/Appellee Private Fuel Storage LLC ("PFS") filed, at the Tenth Circuit, a Motion to Dismiss for Lack of Jurisdiction, arguing that the Plaintiffs' Notice of Appeal was untimely and that the Tenth Circuit therefore lacked jurisdiction.
In an effort to rescue their appeal in the event that the Tenth Circuit dismisses it for lack of jurisdiction, Plaintiffs have moved this court, pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure for an extension of time in which to file their appeal. Plaintiffs contend that the "current situation arose primarily because of unexpected severe health problems," along with difficulties in determining which issues to appeal, if any, because of ongoing discussions with the Bureau of Indian Affairs. Specifically, Plaintiffs claim that, since the time of the Judgment, they attempted to resolve their claims with the government so that some of the issues would not have to be appealed. By the time they discovered that their efforts were likely futile and that all issues needed to be appealed, "there was not much time left and it was difficult to communicate with Individual Relators and Plaintiffs who are scattered across the Western States."
Additionally, Plaintiffs claim that since the time of the Judgment, the health of Mr. Steadman, the primary attorney, "has been getting worse." They contend that his health problems were "particularly debilitating" while he wrote and filed the Notice of [A]ppeal, "affecting his level of effort and ability." Id. at (unnumbered) 3. Plaintiffs also argue that Mr. Steadman's partner, who has also worked on this case, had to "unexpectedly go to work as an engineer in Idaho in order to pay some large medical bills because of unexpected family medical problems." Id. Finally, Plaintiffs argue that if they misconstrued the rule pertaining to the time period for filing a Notice of Appeal, it was a reasonable mistake that constitutes excusable neglect.
Plaintiffs also argue that the use of "et al." in the caption of the Notice of Appeal also qualifies as excusable neglect. However, because the court finds that the untimely Notice of Appeal is not excusable, the court need not address this issue concerning the use of "et al."
PFS and the United States, however, contend that none of Plaintiffs' excuses is excusable, and therefore, Plaintiffs' motion should be denied.
The United States adopted PFS's Memorandum in Opposition to Individual Relators' and Plaintiffs' Motion for Extension of Time to File Notice of Appeal, except for the argument set forth in Point I.B, at page 9.
II. DISCUSSION
Pursuant to Rule 4(a)(5), 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 Rule 4(a) expires; and (ii) that party shows excusable neglect or good cause. Fed.R.App.P. 4(a)(5). Rule 4(a) provides, in pertinent part, that "[w]hen the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered." Fed.R.App.P. 4(a)(1)(B). Accordingly, Plaintiffs had until July 27, 2000 — thirty days after the Judgment was entered on June 27, 2000 — to file this motion. Because Plaintiffs filed their motion on July 26, 2000, they have satisfied the first prong of Rule 4(a)(5).The question, then, is whether Plaintiffs have demonstrated excusable neglect. The Tenth Circuit, like the other circuit courts, has held that the test for "excusable neglect" under Rule 4(a)(5) involves the same factors as the "excusable neglect" standard enunciated by the United States Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates, Ltd. Partnership, 507 U.S. 380 (1993). See City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1045-46 (10th Cir. 1994). The "excusable neglect" inquiry "tak[es] account of all relevant circumstances surrounding the party's omission" and involves the consideration of at least the following factors:
Plaintiffs argue incorrectly that they need merely make the "less strict" showing of "good cause." The advisory committee note to Rule 4(a)(5) makes clear that "good cause" permits an extension only when the movant seeks the extension before the time for filing a notice of appeal has run. When the motion is filed after that time period has expired, as is the case here, an extension can only be granted upon a "showing of excusable neglect." Fed.R.App.P. 4(a)(5) advisory committee note. Numerous courts have so held. See, e.g., Thompson v. E.I. DuPont de Nemours Co., 76 F.3d 530, 532 (4th Cir. 1996) (citing cases from the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits and stating that "[b]ased upon this unambiguous directive from the Advisory Committee on the Federal Rules of Appellate Procedure, we now join the overwhelming majority of our sister circuits in holding that the `good cause' standard is only applicable to motions for enlargement of time filed within thirty days of the entry of judgment.").
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.
Chanute, 31 F.3d at 1046 (quoting Pioneer, 507 U.S. at 395). The test, however, remains "a strict one." Id. at 1046. The Supreme Court has noted that the purpose of the time limitations in Rule 4(a) is "to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if not, to advise prospective appellees that they are freed of the appellant's demands. Any other construction of the statute would defeat its purpose." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quotation and citation omitted). As the Fourth Circuit observed, in a post-Pioneer case,"`[e]xcusable neglect' is not easily demonstrated, nor was it intended to be." Thompson, 76 F.3d at 534.
Applying the Pioneer test to the instant case, this court finds that Plaintiffs' reasons for filing an untimely Notice of Appeal do not constitute excusable neglect. The resolution of this issue pivots on the third Pioneer factor — "the reason for the delay, including whether it was within the reasonable control of the movant." 507 U.S. at 395. The Chanute court noted that "fault in the delay remains a very important factor — perhaps the most important single factor — in determining whether neglect is excusable." 31 F.3d at 1046.
Regarding the three other factors, the court does not find that Plaintiffs acted in bad faith, engaged in excessive delay, or caused prejudice to the other side.
Plaintiffs' miscalculation of the appeal deadline — based on their incorrect assumption that the clock began to run from the date of service of the Judgment, plus three days for mailing — does not constitute excusable neglect. As the Pioneer Court noted, "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect." 507 U.S. at 392. It is clear that when any period of time in the procedural rules is measured from the date of the entry of judgment, rather than from service of a paper on a party, the "three-days-for-mailing" rule has no application. See, e.g., Parker v. Board of Pub. Util. of Kansas City, 77 F.3d 1289, 1291 (10th Cir. 1996); Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 467-68 (5th Cir. 1998), cert. denied, 526 U.S. 1005 (1999); Sofarelli Assocs., Inc. v. United States, 716 F.2d 1395, 1396 (Fed. Cir. 1983). In fact, several courts of appeals have found that district courts had abused their discretion by granting Rule 4(a)(5) extensions involving the same mistake that Plaintiffs made in this case — calculating time from the date of service of judgment, rather than the date of entry, and adding three additional days for mailing. See Midwest Employers Cas. Co. v. Williams, 161 F.3d 877, 879-80 (5th Cir. 1998); Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir. 1994), cert. denied, 513 U.S. 867 (1994); Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir. 1997). Moreover, in each of these cases, the courts held as they did regardless of the other three factors in the Pioneer test. As in the instant case, none of the courts concluded that the appellant had acted in bad faith, engaged in excessive delay, or caused prejudice to the other side.
Furthermore, Plaintiffs' other excuses do not constitute excusable neglect. The fact that Mr. Steadman was involved in discussions with government personnel that could have impacted the scope of Plaintiffs' appeal does not comprise excusable neglect. All losing litigants must consider a variety of factors in deciding whether to appeal and what issues to appeal. The rule requiring timely notices of appeal cannot yield merely because an appellant could not decide which issues to pursue.
Similarly, the court does not find that Plaintiffs' neglect is excusable based on Mr. Steadman's general claims about recent flare-ups with his health problems or Mr. Shepley's general claims about his need to spend time away from his law practice recently. No specific showing has been made that these problems directly prevented Plaintiffs' counsel from filing their one-sentence Notice of Appeal by the date it was due. Furthermore, the fact that they did file a Notice of Appeal by the date that they thought it was due militates against finding that the untimely filing was a result of Mr. Steadman's illness and/or Mr. Shepley's unavailability.
III. CONCLUSION
For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that Individual Relators' and Plaintiffs' Motion for Extension of Time to File Notice of Appeal is DENIED.