Laffit Pincay, Jr. Christopher J. McCarron v. Vincent S. Andrews Robert Andrews Vincent Andrews Management Corp.

389 F.3d 853, 2004 U.S. App. LEXIS 23822, 2004 WL 2579440
Court of Appeals for the Ninth Circuit·Decided November 15, 2004·No. 02-56577·Published·Cited by 310 cases

Opinions

SCHROEDER, Chief Judge.

This appeal represents a lawyer’s nightmare. A sophisticated law firm, with what it thought was a sophisticated system to determine and calendar filing deadlines, missed a critical one: the 30-day time period in which to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(A). The rule, however, provides for a grace period of 30 days within which a lawyer in such a fix may ask the district court for an extension of time, and the court, in the exercise of its discretion, may grant the extension if it determines that the neglect of the attorney was “excusable.”1 Here an experienced trial judge found excusable neglect, and the appellee asks us to overturn that ruling.

The underlying dispute began in 1989 when Laffit Pincay, Jr. and Christopher MeCarron (Pincay) sued Vincent S. Andrews, Robert L. Andrews, and Vincent Andrews Management Corp. (Andrews) for financial injuries stemming from alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and California law. In 1992, a jury returned verdicts in Pincay’s favor on both the RICO and the California counts. Pincay was ordered to elect a remedy, and [855]*855he chose to pursue the RICO judgment. This judgment was reversed on appeal on the ground that the RICO claim was barred by the federal statute of limitations. Pincay v. Andrews, 238 F.3d 1106, 1110 (9th Cir.2001). On remand, Pincay elected to pursue the remedy on his California law claim. Judgment was entered in his favor on July 3, 2002.

Andrews’s notice of appeal was due 30 days later, but a paralegal charged with calendaring filing deadlines misread the rule and advised Andrews’s attorney that the notice was not due for 60 days, the time allowed when the government is a party to the case. See Fed. R.App. P. 4(a)(1)(B). Andrews’s counsel learned about the error when Pincay relied upon the judgment as being final in related bankruptcy proceedings, and Andrews promptly tendered a notice of appeal together with a request for an extension within the 30-day grace period. By that time the matter had been in litigation for more than 15 years. Everyone involved should have been well aware that the government was not a party to the case, and any lawyer or paralegal should have been able to read the rule correctly. The misreading of the rule was a critical error that, had the district court viewed the situation differently, would have ended the litigation then and there with an irreparably adverse result for Andrews. The district court, however, found the neglect excusable and granted the motion for an extension of time to file the notice of appeal.

Pincay appealed to this court, and a majority of the three-judge panel concluded that Andrews’s attorney had improperly delegated the function of calendaring to a paralegal, and held that the attorney’s reliance on a paralegal was inexcusable as a matter of law. Pincay v. Andrews, 351 F.3d 947, 951-52 (9th Cir.2003). It ordered the appeal dismissed. The dissent would have applied a more flexible and deferential standard and affirmed the district court. Id. at 952-56 (Kleinfeld, J., dissenting).

A majority of the active non-recused judges of the court voted to rehear the case en banc to consider whether the creation of a per se rule against delegation to paralegals, or indeed any per se rule involving missed filing deadlines, is consistent with the United States Supreme Court’s leading authority on the modern concept of excusable neglect, Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). We now hold that per se rules are not consistent with Pioneer, and we uphold the exercise of the district court’s discretion to permit the filing of the notice of appeal in this case.

The Pioneer decision arose in the bankruptcy context and involved the “bar date” for the filing of claims. The Court in Pioneer established a four-part balancing test for determining whether there had been “excusable neglect” within the meaning of Federal Rule of Bankruptcy Procedure 9006(b)(1). The Court also reviewed various contexts in which the phrase appeared in the federal rules of procedure and made it clear the same test applies in all those contexts. The Pioneer factors include: (1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party’s conduct was in good faith. 507 U.S. at 395, 113 S.Ct. 1489.

In this case, the district court analyzed each of the Pioneer factors and correctly found: (1) there was no prejudice, (2) the length of delay was small, (3) the reason [856]*856for the delay was carelessness, and (4) there was no evidence of bad faith. It then concluded that even though the reason for the delay was the carelessness of Andrews’s counsel, that fact did not render the neglect inexcusable. The district court relied on this court’s decision in Marx v. Loral Corp., 87 F.3d 1049 (9th Cir.1996), in which we affirmed an order granting an extension of time in a case that involved an attorney’s calendaring error.

Because the panel majority decided the case in part on the issue of delegation of calendaring to a paralegal, we consider that issue first. This issue was not presented to the district court, and it was raised sua sponte by the three-judge panel.

In the modern world of legal practice, the delegation of repetitive legal tasks to paralegals has become a necessary fixture. Such delegation has become an integral part of the struggle to keep down the costs of legal representation. Moreover, the delegation of such tasks to specialized, well-educated non-lawyers may well ensure greater accuracy in meeting deadlines than a practice of having each lawyer in a large firm calculate each filing deadline anew. The task of keeping track of necessary deadlines will involve some delegation. The responsibility for the error falls on the attorney regardless of whether the error was made by an attorney or a paralegal. See Model Rules of Prof 1 Conduct R. 5.5 cmt. 2 (2002) (“This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.”). We hold that delegation of the task of ascertaining the deadline was not per se inexcusable neglect.

The larger question in this case is whether the misreading of the clear rule could appropriately have been considered excusable. Resolution of that question requires some effort to try to distill any principles that have evolved in the 10 years since Pioneer. In Pioneer itself, the Court adopted a broader and more flexible test for excusable neglect. A narrower test existed in many circuits before Pioneer

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Laffit Pincay, Jr. Christopher J. McCarron v. Vincent S. Andrews Robert Andrews Vincent Andrews Management Corp., 389 F.3d 853, 2004 U.S. App. LEXIS 23822, 2004 WL 2579440 (9th Cir. 2004).

389 F.3d 853 (Laffit Pincay, Jr. Christopher J. McCarron v. Vincent S. Andrews Robert Andrews Vincent Andrews Management Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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