Cowart v. Ingalls Shipbuilding

213 F.3d 261, 2000 WL 668879

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 6, 1999
• Docket: 99-60034
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60034

Summary Calendar

BARBARA COWART; A J DURBANO, Plaintiffs-Appellants, versus

INGALLS SHIPBUILDING Defendant-Appellee

Appeal from the United States District Court For the Southern District of Mississippi No. 1:97-CV-371-GR

August 4, 1999

Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.

PER CURIAM:*

The notice of appeal in this case was filed on October 15,

1998, thirty-one days after the entry of final judgment by the

district court. The rule allows only thirty days. See Fed. R.

App. P. 4(a)(1). On October 16, the plaintiffs filed a motion for

leave to file the appeal out of time. They explained that a

paralegal was to have filed the notice of appeal three days before

* Local rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this opinion should not be published. the deadline, but failed to do so when her son was involved in a

serious automobile accident. They also assert that one of the two

attorneys on the case ordinarily would have followed up to make

sure the document was properly filed, but did not do so because he

was busy with two other federal cases at the time.

The district court denied the motion to file out of time, and

this alone is before us now. “The district court, upon a showing of

excusable neglect or good cause, may extend the time for filing a

notice of appeal upon motion filed not later than 30 days after the

expiration of the time prescribed by this Rule 4(a).” Fed. R. App.

P. 4(a)(5). We have held that appellants are entitled to make a

“good cause” showing only if a motion for extension of time is

filed before the initial thirty-day appeal period expires. See

Allied Steel, Gen. Contractor v. City of Abilene, 909 F.2d 139, 143

n.3 (5th Cir. 1990), disapproved by on other grounds, United States

v. Clark, 51 F.3d 42, 44 (5th Cir. 1995). Thus, only “excusable

neglect” is at issue here.

The Supreme Court offered a helpful explication of “excusable

neglect” in Pioneer Investment Services Co. v. Brunswick Associates

Limited Partnership, 507 U.S. 380 (1993). Although that case

involved Bankruptcy Rule 9006(b)(1), the Court drew on a number of

legal provisions containing the “excusable neglect” standard. See

id. at 392-94. We have responded by importing Pioneer’s analysis

of “excusable neglect” into non-bankruptcy contexts, including Rule

4(a). See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465,

468 (5th Cir. 1998); see also Clark, 51 F.3d at 44 (Rule 4(b)).

2 Pioneer held that “‘excusable neglect’ is understood to

encompass situations in which the failure to comply with a filing

deadline is attributable to negligence.” 507 U.S. at 394. The

Court recognized “a range of possible explanations for a party’s

failure to comply with a court-ordered filing deadline.” Id. at

387. “At one end of the spectrum, a party may be prevented from

complying by forces beyond its control, such as by an act of God or

unforseeable human intervention. At the other, a party simply may

choose to flout a deadline.” Id. at 387-88. The ultimate question

is an equitable one, taking into account “the danger of prejudice

to the debtor, 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 394.

The district court did not directly address the first two of

these factors concerning the effect of the late filing, even though

the Supreme Court apparently rejected the dissenters’ position that

only the cause of the delay should matter. See id. at 403

(O’Connor, J., dissenting). Filing the notice of appeal was within

the reasonable control of the movant, the district court found,

because the attorneys could have filed it themselves. The cause of

the paralegal’s failure to file was thus thought irrelevant.

If the district court’s ruling were to stand, attorneys would

risk procedural default by delegating the task of filing pleadings

to even the most reliable subordinates. On the district court’s

reasoning, an attorney’s theoretical ability to file a pleading

3 personally weighs so heavily in the equitable calculus that even if

there is no prejudice from a late filing, the failure to file on

time is necessarily inexcusable. We cannot turn a blind eye to the

reality that legal pleadings are routinely filed by nonlawyers and

that this division of labor makes economic sense. Privileging a

lawyer’s family emergency over a paralegal’s would turn attorneys

into highly paid messengers.

The district court’s ruling on this matter can be upset only

for abuse of discretion. See Halicki, 151 F.3d at 470. If real

prejudice occurred as a result of the late filing, we would not

overturn a district court’s determination that this outweighed an

attorney’s good faith in believing that a pleading was properly

filed. Here, though, there was but a one-day delay, and no

prejudice has been alleged. That the appellants’ lawyers in theory

could have filed the pleading themselves or personally verified

that it had been properly filed does not tip the balance enough, if

it tips the balance at all, to compensate for this lack of

prejudice. Even is such conduct is negligent, it is excusable

given the financial and organizational structure of modern law

firms.

We REVERSE the district court and ORDER that briefs on the

merits be filed according to the usual procedures.