Opinion
No. 98 C 4205
March 10, 2000
MEMORANDUM OPINION AND ORDER
On November 30, 1999, judgment was entered in this case in favor of defendant Armstrong World Industries, Inc. Plaintiff Cary Carson had until December 30, 1999 to file a timely notice of appeal. We did not do so. On January 28, 2000, plaintiff filed a motion to extend time for filing a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5), through his attorney, Denise Mercherson, claiming good cause for plaintiff's failure to timely file a notice of appeal. Defendant opposed the motion to extend the time for appeal, arguing that plaintiff failed to show good cause or excusable neglect for the failure to timely file a notice of appeal. Plaintiff has filed a reply to defendant's opposition. For the following reasons, plaintiffs motion for extension of time in which to file a notice of appeal is DENIED.
Plaintiff's reply was due by February 18, 2000. Plaintiff's counsel filed the reply on February 25, 2000, a week after it was due, without seeking leave of court or providing this court any explanation for the tardiness.
BACKGROUND
In plaintiff's motion to extend time to file a notice of appeal, Mercherson stated that, on December 9, 1999, she had mailed to Carson a copy of this court's Memorandum Opinion and Order and a letter which advised him that his case had been dismissed and that he had until December 28, 1999 to appeal. That letter was attached as Exhibit A to plaintiff's motion. The body of the letter stated as follows:
Enclosed please find Judge Holderman's Memorandum Opinion and Order of November 29, 1999. Defendants [sic] motion for summary judgment was granted.
In my opinion, it was critical that the court found that it could not be established that other similarly-situated non-African Americans were treated more favorably in terms of discipline for threats. (See pp 7-8). There was no evidence that Mr. Bailey interpreted the statements of two white employees as threats. You have until December 28, 1999 to file a notice of appeal with the circuit Court of Appeals.
Should you have any questions, please feel free to contact me.
Mercherson's motion further to extend time to file a notice of appeal represented that she had received a note from Carson's wife on January 7, 2000, which did not mention the case. Mercherson did nothing in response to the note. In her motion, Mercherson stated that she first became aware that Carson had not received her December 9 letter on January 21, 2000, when Carson phoned her to ask how his case was going. In response to her client's question, Mercherson explained that his case had been dismissed, and that she had sent him a letter to that effect. Carson responded that he had not received the letter and copy of this court's order. On January 24, Carson came to Mercherson's office. Mercherson was not present. According to Mercherson, Carson confirmed that he had not seen Mercherson's December 9, 1999 letter or this court's Memorandum Opinion and Order. On January 26, Carson again reiterated to Mercherson that he had not received the documents. Carson's wife explained to Mercherson that they had experienced problems with the mail in the past. Mercherson recalled in that January 26 conversation with Carson and his wife that on at least one occasion in the past, she had mailed a letter to plaintiff which had been returned as undeliverable. In open court on February 4, 2000, Mercherson explained that because she had not heard from her client prior to the deadline to file a notice of appeal, she had assumed that he did not wish to appeal. Mercherson never phoned Carson to confirm the truth of this assumption. Mercherson was on vacation beginning December 26, 1999, through the date by which the notice was to be filed.
Defendant objected to plaintiff's motion, both in a written response and orally in open court. Defendant argued that Mercherson's failure to ensure that her client knew that his case had been dismissed and that he had only 30 days in which to appeal does not constitute "excusable neglect" under the law of the Seventh Circuit. In plaintiff's reply, Mercherson changed her story as to the time at which she first realized that her client had not received mail she had sent. In the reply, Mercherson stated that she "did not know that she could not rely upon the mail until mid-January, 2000, when a correspondence addressed to the Carson [sic] was returned as non-deliverable." Mercherson attached a partial photocopy of an envelope that was misaddressed to Carson by Mercherson's office and had been returned. That misaddressed envelope is labeled as Exhibit A to the reply. In her reply, Mercherson had not informed this court as to the contents of the envelope. Moreover, the portion of the envelope which had been meter-stamped with the date was not included on the photocopy, marked as Exhibit A to plaintiff's reply. Because of the discrepancies in Mercherson's explanations and failure to explain the contents of the misaddressed envelope, this court ordered counsel to appear in court, and ordered Mercherson to bring the original Exhibit A envelope and its contents. Counsel for both parties appeared on March 8, 2000, and Mercherson brought the original envelope, the partial photocopy of which comprises Exhibit A to plaintiff's reply. The envelope had not been opened, and was postmarked for January 10, 2000. At the court's request, Mercherson opened the envelope in open court at the hearing. Mercherson explained, and this court confirmed, that the envelope contained a copy of defendant's bill of costs.
The original envelope and its contents, the photocopy of which is labeled as Exhibit A of plaintiff's reply brief, will be filed and included as part of the record in this case.
Whereas Mercherson originally argued that she had no reason to know that her client did not know that his case had been dismissed until January 21, 2000, she now represents that she had knowledge of problems with the mail sometime in "mid-January." The returned letter was certainly enough to put Mercherson on notice that her client may not have received her December 9 letter informing him of this court's decision. In addition, in her initial motion and in open court, Mercherson represented to this court that she had no contact with her client between November 29, 1999 and January 21, 2000 other than those outlined above: the letter December 9, 1999 letter Mercherson allegedly mailed but Carson never received, the January 7, 2000 note from Carson's wife, and the telephone conversation on January 21, 2000. Now, Mercherson states that she had mailed Carson defendant's bill of costs and learned that it was non-deliverable. Additionally, Mercherson represented in open court that Kankakee has had extensive problems with the mail system, attributing her client's not receiving the letter to those problems. However, the returned envelope which Mercherson received in "mid-January" was addressed incorrectly. Mercherson failed to inform this court that her own negligence in addressing the letter may have been the cause of Carson's not receiving it.
It should also be noted that on January 12, 2000, during a period in which Mercherson represented to this court that she had not been in contact with her client, Mercherson filed an objection to defendant's of costs. In that objection, Mercherson stated that "[p]laintiff has nearly exhausted his financial resources." Yet, in her motion for an extension of time and in open court on February 4, 2000, Mercherson represented that she had no contact with her client from at least the time this court issued its order on November 29, 1999 until January 21, 2000. Now, she maintains that she mailed Carson a copy of defendant's bill of costs on January 10, 2000, but did not discuss it with him. Despite this lack of contact, Mercherson professed awareness of her client's financial position as of January 12, 2000, at least 45 days after her last contact with him.
ANALYSIS
Federal Rule of Appellate Procedure 4(a)(5) provides that a district court may extend the time for the filing of a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed in Rule 4 for filing such notice "upon a showing of excusable neglect or good cause." Rule 4(a)(1) provides that notice of appeal must be filed with the clerk of the district court within 30 days after the entry of the judgment to be appealed. The clerk entered the final order issued by this court granting summary judgment in favor of defendant and dismissing this case in its entirety on November 30, 1999. Thus, plaintiff was required to file a notice of appeal by December 30, 1999. January 29, 2000, was the last day by which a request for an extension of time in which to file that notice could be filed.
Whether attorney negligence may constitute excusable neglect in missing the filing of a deadline is a matter of discretion for the trial judge.See Robb v. Norfolk Western R.R. Co., 122 F.3d 354, 361 (7th Cir. 1997). In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489 (1993), the Court held that "excusable neglect is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence." Id. at 394, 113 S.Ct. at 1497 (emphasis added). The Court also held that the determination of what amounts to "excusable neglect" is: "at bottom an equitable one, taking account of all the relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [defendant], the length of the delay and its potential impact on judicial proceedings, the reasons for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted within good faith." Id. at 395, 113 S.Ct. at 1498. Although Pioneer involved Bankruptcy Rule 9006(b)(1), the Court also discussed the meaning of the term "excusable neglect" as it is used elsewhere in the array of federal procedural rules, including Federal Rule of Civil Procedure 60(b)(1). See also Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996) (interpreting excusable neglect under Federal Rule of Appellate Procedure 4(a)(5). and finding that "the term bears the same or similar meaning throughout the federal procedural domain").
Taking into account all the relevant circumstances of plaintiff's omission, the equities bear heavily in favor of denying plaintiff's motion. Whichever version of plaintiff's story this court accepts, Mercherson has presented nothing other than her own unjustifiable negligence to explain her omission. First, the December 9, 1999 letter that Mercherson mailed to her client (even if it was properly addressed) was not sufficient to comply with the Northern District of Illinois Rules of Professional Responsibility. Rule 1.4(b) provides: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Mercherson's summary letter fails to provide Carson with sufficient information to make an informed decision as to whether to pursue his right to appeal. It does not explain the legal basis for this court's ruling, nor present any possible arguments which could be raised on appeal.
Moreover, Mercherson knew of problems with Carson receiving her correspondence as of "mid-January." Despite that knowledge, Mercherson did not initiate any contact with her client to confirm that he had received her December 9, 1999 letter, which explained that his case had been dismissed. As of January 21, 2000 (when plaintiff Carson phoned Mercherson), Mercherson knew for certain that her client had not received the December 9, 1999 letter. Despite this knowledge, she waited seven additional days, until January 28, 2000 to file the pending motion for an extension of time to file an appeal. Later, faced with the reality of her client losing his right to appeal, Mercherson was tardy in filing plaintiff's reply to defendant's objection to the motion for extension of time, filing the reply a full week after it was due, without requesting this court to extend the time for plaintiff's reply.
Moreover, Mercherson's conflicting representations give this court ample reason to suspect that she has not acted in good faith and has been less than truthful with this court as to the reason for her omission. Mercherson's record of tardiness and delay, as well as her lack of full candor, may properly be considered by this court in determining whether her negligence constitutes "excusable neglect." Robb, 122 F.3d at 362. This court, however, will not consider Mercherson's record of tardiness and delay as dispositive — as explained, this court does not consider any of the excuses proffered by Mercherson to be excusable. Mercherson had an obligation not only to ensure that her client was aware of this court's decision and his right to appeal, but also had an ethical obligation to explain the matter reasonably necessary to permit Carson to make informed decisions regarding any further action to be taken in the litigation, including whether to appeal. Mercherson should have written a more detailed letter than her December 9, 1999 letter. She should not have delayed 10 days before mailing the letter to plaintiff. She should have followed up the letter with prompt contact with plaintiff either in person or by phone to explain the matter and assist him in the decision of whether to appeal. She should have informed this court and her client as soon as she had reason to suspect that Carson had not received the mail she had sent. She did none of these things. If this sort of neglect were considered to be excusable, no neglect could properly be considered inexcusable.
CONCLUSION
For the reasons stated, plaintiff's motion to extend time to file a notice of appeal is DENIED.