Environamics v. Thelco

Opinion

Environamics v. Thelco CV-96-068-M 08/25/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Environamics Corporation, Plaintiff

v. Civil No. 96-68-M

Thelco Corporation, Defendant

O R D E R

Environamics Corporation moves to extend the time in which

it may file an appeal from the jury's verdict. Defendant

obj ects.

On November 20, 1998, the jury returned its verdict in this

case, finding for Environamics on its breach of contract claim

and for Thelco on its counterclaim for negligent

misrepresentation. The court granted defendant's motion for

judgment in accord with special jury verdicts, and denied

plaintiff's renewed motion for judgment as a matter of law or for

a new trial. The court then partially granted defendant's motion

to guantify the jury's verdict. Judgment was entered on June 1,

1999. On July 2, 1999, Environamics filed a notice of appeal.

Having apparently been informed that defendant intended to

challenge the timeliness of its appeal, plaintiff now seeks a

protective extension of time to file its appeal under Federal

Rule of Appellate Procedure 4 (a)(5), arguing that while it is satisfied that its appeal was timely filed, an extension would

eliminate any issue of timeliness.

Rule 4(a)(5) provides in part:

(A) 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) that party shows excusable neglect or good cause.

Federal Rule of Appellate Procedure 4(a)(1)(A), in turn, provides

that, except in circumstances not relevant here, a notice of

appeal in a civil case "must be filed with the district clerk

within 30 days after the judgment or order appealed from is

entered." So, plaintiff's notice of appeal, filed 31 days after

entry of judgment, would seem to be untimely. But, its motion

for extension of time, filed on July 15, 1999, was filed within

thirty days of the expiration of the time for appeal. Subpart

(i) of Fed.R.App.P. 4(a)(5)(a) is, therefore, satisfied and

plaintiff must now show "excusable neglect or good cause."

Fed.R.App.P. 4 (a)(5)(A)(ii).

Plaintiff's counsel explain that, relying on Fed.R.App.P.

4(a)(1)(A) and the "District of New Hampshire Time Computation

Guidelines," they thought about the time available to file an

appeal and calculated that Environamics actually had 33 days to

file its notice of appeal. And, because the Independence Day

holiday was celebrated on July 5, they determined that the appeal

2 period expired on July 6, 1999. Thus, plaintiff contends that

its July 2 notice of appeal was timely.

Plaintiff is mistaken. Federal Rule of Appellate Procedure

4(a)(1)(A) unequivocally establishes a 30-day period from the

entry of judgment in which to file a notice of appeal.

Plaintiff's counsel argue, however, that according to the

"District of New Hampshire Time Computation Guidelines," they

had, or reasonably thought they had, three extra "mail" days in

which to file the notice of appeal. The referenced "Time

Computation Guidelines" are set out in materials prepared by the

court clerk's office and distributed at a seminar for lawyers'

secretaries and support staff. Those materials advise, in part,

that "[i]f the initial time period is figured using calendar days

(11 days or over), add 3 extra calendar days."

The "Guidelines" cannot be read, however, to extend the time

for filing a notice of appeal. Indeed, the "Guidelines"

pointedly reference Fed.R.Civ.P. 6(a) and (e), Fed.R.Crim.P.

45(a) and (e) , and LR 7.1(b). Those rules add three days to

prescribed time periods that run from the date of service of some

paper on a party. Federal Rule of Civil Procedure 6(e), for

instance, provides:

Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after

3 the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

(Emphasis added.) The appeal period established by Fed.R.App.P.

4(a)(1)(A) does not begin to run from the date of service of some

paper on a party, but from the court's entry of judgment. Thus,

procedural rules allowing an extra three "mail" days are, by

their own terms, not applicable to the time for filing a notice

of appeal. See, e.g., Reynolds v. Hunt Oil Co., 643 F.2d 1042,

1043 (5th Cir. 1981)("The law is clear that the 30-day filing

reguirement of Fed.R.App.P. 4(a) is not affected by . . .

Fed.R.Civ.P. 6(e)."); Merrill Lynch, Pierce, Fenner & Smith, Inc.

v. Kurtenbach, 525 F.2d 1179, 1181 (5th Cir. 1975) ("Rule 6(e) has

no application when computing time for a notice of appeal.");

Lashlev v. Ford Motor Co., 518 F.2d 749 (5th Cir. 1975)(same);

c f . Wvzik v. Employee Benefit Plan of Crane Co., 663 F.2d 348,

349 (1st Cir. 1981)(holding, citing Reynolds v. Hunt Oil Co.,

that " [a]ppellant's argument that [Fed.R.App.P.] 26(c) extends

the time for filing a notice of appeal under [Fed.R.App.P.

4(a)(1)] is incorrect."). And, the referenced "Time Computation

Guidelines" cannot have misled even a casual reader, for they

specifically warn of exactly that distinction: "These guidelines

may not apply to deadlines established by other Federal Rules,

4 e.g.. Fed.R.Civ.P. 54(d)(2)(B) provides for filing by a date 'no

later than 14 days after entry of judgment.'" (emphasis added)

Plaintiff argues that even if its notice of appeal was not

timely filed, that untimeliness was nevertheless due to

"excusable neglect" or "good cause, permitting a discretionary

extension of time." The good cause portion of Fed.R.App.P.

4(a)(5)(A)(ii) is not applicable here, because "[w]here the need

for an extension of time to file a notice of appeal results

entirely from neglect attributable to the would-be appellant, as

distinguished from forces beyond her control, amended rule

4(a)(5) reguires a showing of 'excusable neglect.'" Pontarelli v.

Stone, 930 F.2d 104, 111 (1st Cir. 1991); see also Virella-Nieves

v. Briggs & Stratton Corp., 53 F.3d 451 (1st Cir. 1995) (holding

good cause not an appropriate ground for extension of time to

file an appeal where failure to timely file was due to neglect).

Plaintiff's counsel does not contend that an untimely filing was

due to circumstances beyond their control, but candidly attribute

their filing on July 2 to counsels' own thoughtful construction

of the applicable rules, or, in other words, if the appeal was

late, it was late due to counsels' own mistake, which mistake

constitutes "excusable neglect." Thus, the issue is governed by

the "excusable neglect" prong of Fed.R.App.P. 4(a)(5)(A)(11).

5 In determining whether excusable neglect has been shown, the

court is necessarily guided by the Supreme Court's decision in

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership,

507 U.S. 380 (1993) . See Virella-Nieves, 53 F.3d at 454 n.3

("agree[ing] with the Tenth Circuit that Pioneer's exposition of

excusable neglect, though made in the context of late bankruptcy

filings, applies egually to Fed.R.App.P. 4(a) (5)"). In Pioneer,

the Supreme Court held that the determination of whether neglect

is excusable "is at bottom an eguitable one, taking account of

all relevant circumstances surrounding the party's omission."

Pioneer, 507 U.S. at 395 (footnote omitted). Relevant

circumstances include "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." Id.

In this case, the risk of substantive prejudice to defendant

in allowing the extension is slight. Although defendant would

have to defend an otherwise precluded appeal, that does not

constitute "prejudice" for purposes of this inguiry. See Pratt

v. Philbrook, 109 F.3d 18, 22 (1st Cir. 1997) ("Of course, it is

always prejudicial for a party to have a case reopened after it

has been closed advantageously by an opponent's default. But we

6 do not think that is the sense in which the term ’ 'prejudice' is

used in Pioneer."). No other potential prejudice (e.g., lost

transcripts) appears to be present. See id. The length of the

delay in this case - one day - is certainly minor, and it is

reasonably clear that a one day delay would not have any adverse

impact on appellate proceedings, given the usual course of

briefing and argument. Finally, plaintiff has acted in good

faith. These factors all weigh in favor of granting an

extension.

The remaining factor, however - "the reason for the delay,

including whether it was within the reasonable control of the

movant," Pioneer, 507 U.S. at 395 - weighs very heavily against

granting plaintiff's motion. The failure to timely file the

notice of appeal was due to plaintiff's counsels' own misreading

or misapplication of applicable rules of procedure. The rules

themselves are not ambiguous, cf. Kyle v. Campbell Soup Co., 28

F.3d 928, 931 (9th Cir. 1994) (noting that "counsel in this

matter committed a mistake in interpreting and applying the Local

Rules and Rule 6 (e) of the Federal Rules of Civil Procedure,

which were not ambiguous"), and extensive case law existed that

should have alerted counsel that their interpretation of the

rules was erroneous, see e.g., Wvzik, 663 F.2d 348, Reynolds, 643

F.2d 10 42; Kurtenbach, 525 F.2d 1179; Lashlev, 518 F.2d 749. The

7 Fifth Circuit noted, in a similar case, that "[t]he nature of

[the party's] mistake weighs heavily against a finding of

excusable neglect." Halicki v. Louisiana Casino Cruises, Inc.,

151 F.3d 465 (5th Cir. 1998), cert, denied, 119 S.Ct. 1143, 143

L.Ed.2d 210 (1999)(party sought extension of time to file appeal

where Fed.R.Civ.P. 59(e) motion, which counsel mistakenly thought

he had three extra days to file under Fed.R.Civ.P. 6(e), was

untimely and therefore did not toll appeal period).

Even after Pioneer relaxed the excusable neglect standard,

most courts have consistently held that a lawyer's misapplication

of unambiguous procedural rules cannot constitute "excusable

neglect." See, e.g., id. at 470 ("Where, as here, the rule at

issue is unambiguous, a district court's determination that the

neglect was inexcusable is virtually unassailable."); Kyle, 28

F.3d at 931 (finding neglect inexcusable because counsel's good

faith and professional competence and the absence of prejudice to

the nonmoving party "do not suffice where the only claimed

neglect is an attorney's addition of three days for service by

mail to a time period running from docketing of an order of

judgment"). But c f . Maberrv v. Said, 1996 WL 442046, at *3 (D.

Kan. July 3, 1996)(noting that "certain mistakes construing the

rules are excusable" and holding excusable, "[a]lthough an

exceedingly close call," plaintiff's counsel's confusion over whether the period for filing a motion for attorneys' fees under

Fed.R.Civ.P. 54 started from the entry of judgment or the ruling

on post-trial motions). The Eleventh Circuit has gone so far as

to hold, "as a matter of law, that an attorney's misunderstanding

of the plain language of a rule cannot constitute excusable

neglect such that a party is relieved of the conseguences of

failing to comply with a statutory deadline." Advanced

Estimating Svs., Inc. v. Rinev, 130 F.3d 996, 998 (11th Cir.

1997). The First Circuit has not addressed the issue post-

Pioneer, but has previously held that "mistaken reliance on

[Fed.R.Civ.P .] 6(e) could not be excusable neglect." Mattson v.

Brown Univ. , 925 F.2d 529, 532 (1st Cir. 1991) .

The reason advanced for the delay in this case - counsels'

misinterpretation of unambiguous rules and concomitant

miscalculation of the last day on which an appeal could be taken

- outweighs the absence of prejudice to defendant, the minimal

length of the delay, and the plaintiff's good faith. Thus, the

delay cannot be ascribed to "excusable neglect," as that term is

properly understood, and so plaintiff's motion to extend time to

file appeal (document no. 90) is denied. SO ORDERED.

Steven J. McAuliffe United States District Judge

August 25, 1999

cc: Michael C. Harvell, Esg. Laurin D. Quiat, Esg. Rosemary A. Macero, Esg. United States Court of Appeals