Opinion
No. 02 Civ. 5171 (DLC).
November 19, 2004
Kevin Bass, White Plains, New York, for Pro Se Plaintiff.
Matthew T. Miklave, Epstein Becker Green, P.C., New York, New York, for Defendant.
OPINION AND ORDER
In an Opinion issued on September 1, 2004, the motion by NYNEX for summary judgment in this employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, was granted. The plaintiff, Kevin Bass ("Bass"), now moves for an extension of his time to file an appeal. The motion is denied.
BACKGROUND
Summary judgment in favor of the defendant was granted in a seventeen-page Opinion and Order on September 1, 2004. Bass v. NYNEX, No. 02 Civ. 5171 (DLC), 2004 WL 1941088 (S.D.N.Y. Sept. 1, 2004). That Opinion and Order also instructed the Clerk of Court to close the case. Id. at *8. Plaintiff's counsel was advised by telephone on September 1, 2004 that the Opinion of that date had been issued. As stated in the Court's Individual Practices in Civil Cases, a copy was made immediately available to all counsel through a posting on CourtWeb. The September 1 Opinion was entered on the docket on September 2, and the Clerk of Court's judgment terminating the case was entered that same day. Under Rule 4(a)(1)(A), Fed.R.App.P., the plaintiff's opportunity to file a timely notice of appeal expired at the latest on October 4.
Rule 4(a)(1)(A), Fed.R.App.P., provides that a timely notice of appeal must be filed with the district clerk within 30 days after the judgment or order appealed from is entered. Thirty days after the judgment was entered by the Clerk of Court,i.e., October 2, fell on a Saturday in 2004, pushing the deadline to the next business day, Monday, October 4.
Through a motion that bears the date October 7, was postmarked October 8, and was filed on October 12, plaintiff movespro se for an order pursuant to Rule 4(a)(5), Fed.R.App.P., to extend the time for appeal for good cause shown. The entire text of the basis on which Bass moves for such an order is as follows:
The motion was received by this Court on November 9.
I received notice of the judgemt [sic] on Sept. 13th and the decision was lengthy and needed to talk to my attorney to see if an appeal was necessary. I am a traveling salesman which takes up a lot of my time and caused a short delay because of my occupation.
DISCUSSION
Rule 4(a)(5) of the Federal Rules of Appellate Procedure provides in pertinent part:
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) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
Rule 4(a)(5), Fed.R.App.P. Compliance with Rule 4(a) is "mandatory and jurisdictional." Silivanch v. Celebrity Cruise, Inc., 333 F.3d 355, 363 (2d Cir. 2003) (citation omitted). If no notice of appeal is filed before the deadline provided by Rule 4(a)(1), Fed.R.App.P., the Court of Appeals "lacks jurisdiction to hear the appeal." Id. The power to extend this time limitation "is severely circumscribed." Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir. 1997). One of the two potential methods for doing so is through a showing of "excusable neglect or good cause." Silivanch, 333 F.3d at 364 (citation omitted).
The Advisory Committee Notes for the 2002 Amendments to Rule 4, Fed.R.App.P., explain that "excusable neglect" and "good cause" are distinctly different standards:
The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.
Rule 4, Fed.R.App.P., Advisory Committee Notes, Subdivision (a)(5)(A)(ii). The governing standard for Bass's motion is "excusable neglect" as opposed to "good cause," because the need for the extension was caused by something within his control,i.e., his schedule.
The "good cause" standard applies, for example, if "the Postal Service fails to deliver a notice of appeal." Rule 4, Fed.R.App.P., Advisory Committee Notes, Subdivision (a)(5)(A)(ii).
The Supreme Court describes "excusable neglect" as an elastic concept, suggesting that such a determination is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 392, 395 (1993) (citation omitted). Factors to be considered in evaluating excusable neglect include "[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within reasonable control of the movant, and [4] whether the movant acted in good faith." Silivanch, 333 F.3d at 366 (citing Pioneer, 507 U.S. at 395). Typically, the first two Pioneer factors will favor the moving party:
[D]elay always will be minimal in actual if not relative terms, and the prejudice to the non-movant will often be negligible, since the Rule requires a 4(a)(5) motion to be filed within thirty days of the last day for filing a timely notice of appeal. And rarely in the decided cases is the absence of good faith at issue.Id. (citation omitted). Despite the flexibility of the "excusable neglect" standard and the existence of the four-factor test in which three of the factors usually weigh in favor of the party seeking the extension, it is appropriate to focus on the third factor: "the reason for the delay, including whether it was within reasonable control of the movant." Id. (citation omitted). Equitable considerations will "rarely if ever favor a party who fails to follow the clear dictates of a court rule" and where "the rule is entirely clear, we continue to expect that a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test." Id. at 366-67 (citation omitted). See also United States v. Hooper, 43 F.3d 26, 28-29 (2d Cir. 1994) (per curiam) (affirming denial of Rule 4(b) extension where delay resulted from legal assistant's ignorance of the rules); Weinstock v. Cleary, Gottlieb, Steen Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) (affirming denial of Rule 4(a)(5) extension where delay was due to a misunderstanding of the rules, even though the rule in question was a "a `trap' for the unsuspecting litigant.").
Bass filed this motion within the time required to obtain an extension under Rule 4(a)(5)(A). Even employing the liberalPioneer standard, however, the motion must be denied because Bass has not made a showing of excusable neglect or good cause. Bass relies on his job schedule as his justification for excusable neglect, but offers no reason, credible or otherwise, why his travel schedule would have interfered with the simple act of filing an appeal pro se or conferring with his attorney and approving an appeal, over the telephone, if necessary. Whether an opinion is "lengthy" or not is not an acceptable example of excusable neglect or good cause for failing to file even anotice of appeal in a timely fashion. Finally, Bass was represented by counsel, who was notified of the Opinion on September 1, and Bass himself acknowledges that he personally became aware of the judgment on September 13, affording him ample opportunity to decide whether to file a timely appeal.
CONCLUSION
The plaintiff's motion to extend time to file an appeal is denied.
SO ORDERED.