Summary
In Worthy v. General Longshoremen's Workers Int'l, 2003 WL 260520 (E.D.La., Feb. 4, 2003), the Notice of Appeal was one day late because counsel erroneously excluded legal holidays when computing the 30-day period.
Summary of this case from Bethea v. PotterOpinion
CIVIL ACTION NO: 01-3683 SECTION: "R"(4)
February 4, 2003
ORDER AND REASONS
Before the Court is plaintiff's motion for an extension of time to file a notice of appeal. Because the Court finds that counsel's misconstruction of an. unambiguous rule does not constitute excusable neglect, the Court denies plaintiff's motion.
I. Background
In this lawsuit, plaintiff sought injunctive and declaratory relief pertaining to his application for membership in a local union. The Court granted defendants' motion for summary judgment on all claims on November 26, 2002. Final judgment against plaintiff was also entered on November 26, 2002. Federal Rule of Appellate Procedure 4 provides that in civil cases, a notice of appeal "must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." FED. R. App. P. 4(a)(1)(A). The Rules further provide:
Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 7 days, unless stated in calendar days.
FED. R. APP. P. 26(a)(2). Accordingly, plaintiff had until December 26, 2002 to file a notice of appeal. Plaintiff filed a notice of appeal one day late, on December 27, 2002. Plaintiff's excuse is that counsel mistakenly excluded legal holidays in calculating the 30-day period.
II. Discussion
A district court may grant an extension of time to file a notice of appeal if two conditions are met. FED. R. APP. P. 4(a)(5) First, the moving party must request an extension of time no later than 30 days after the time prescribed by Rule 4(a) expires. Plaintiff has met this condition. Plaintiff's deadline to file a Notice of Appeal pursuant to Rule 4(a) was December 26, 2002, and this motion was filed on January 8, 2003.
Second, in order to receive an extension of time, the moving parry must show "excusable neglect" or "good cause." Id. In deciding what constitutes "excusable neglect," courts employ the analysis adopted by the Supreme Court in Pioneer Investment Services Company v. Brunswick Associates Limited Partnerships, 507 U.S. 380, 388, 113 S.Ct. 1489, 1495 (1993). In Pioneer, the Supreme Court explained that "excusable neglect" includes "inadvertence, mistake, or carelessness, as well as . . . intervening circumstances beyond the party's control." Pioneer, 507 U.S. at 388, 113 S.Ct. at 1495. The Supreme Court further stated that consideration of a party's neglect "is at bottom an equitable one." Id. at 395, 113 S.Ct. at 1498. Factors to be considered include the reason for the delay, the absence of bad faith, the length of the delay, and the danger of prejudice to the nonmoving party. Id. If the reason for the delay is a misconstruction of an unambiguous rule, however, an extension of time is only to be granted in rare circumstances. Midwest Employers Casualty Co. v. Williams, 161 F.3d 877, 882 (5th Cir. 1998); Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 469 (5th Cir. 1998); see also Ludgood v. Apex rporation Ship Management, 311 F.3d 364 (5th Cir. 2002); United States v. Clark, 51 F.3d 42, 44 (5th Cir. 1995).
In Midwest, the Fifth Circuit ruled that the magistrate judge abused his discretion in finding that counsel's mistaken construction of an unambiguous rule constituted excusable neglect. In that case, plaintiff's counsel neglected to file a timely notice of appeal due to the mistaken belief that he had instead timely filed a Rule 59 motion for a new trial. In fact, because counsel had misconstrued Federal Rule of Civil Procedure 6(e), his motion for a new trial was untimely. The Fifth Circuit stated:
Although in Clark we left open the possibility that some misinterpretations of the federal rules may qualify as excusable neglect, such is the rare case indeed. Where, as here, the rule at issue is unambiguous, a district court's determination that the neglect was inexcusable is virtually unassailable. Were it otherwise, "almost every appellant's lawyer would plead his own inability to understand the law when he fails to comply with a deadline."Midwest, 161 F.3d at 879 (quoting Halicki, 151 F.3d at 467). The Fifth Circuit noted that it is necessary to take into account all relevant factors, including the length of the delay and whether the movant acted in good faith. Id. at 879. Nevertheless, the Midwest court found that "the nature of this very mistake weighs heavily against a finding of excusable neglect." Id. at 880 (internal citations omitted)
Here, plaintiff's mistake is of the same nature as that in Midwest — the misconstruction of an unambiguous procedural rule. There can be no doubt that Rule 26 provides for the exclusion of legal holidays in the computation of time only when the period is less than 7 days. FED. R. APP. P. 26(a)(2). Counsel's erroneous decision to exclude legal holidays in the computation of a 30 day period is a garden variety mistake. It is not a "rare case indeed." To be sure, there are factors that weigh in plaintiff's favor. Most notably, the notice of appeal was filed a mere one day late. Furthermore, there is little danger of prejudice to the nonmoving party. Nevertheless, the nature of the mistake — the garden variety misconstruction of an unambiguous rule — compels the Court to conclude that an extension of time in which to file a notice of an appeal is unwarranted. Midwest, 161 F.3d at 879-80.
III. Conclusion
For the foregoing reasons, the Court denies plaintiff's motion.