Free Order on Motion for Extension of Time - District Court of Colorado - Colorado

Case 1:03-cv-02506-MSK-CBS

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Filed 11/09/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 03-cv-02506-MSK-CBS CRAIG MAGRAFF, Plaintiff, v. LOWES HIW, INC., Defendant. ______________________________________________________________________________ ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL ______________________________________________________________________________ THIS MATTER comes before the Court pursuant to the Plaintiff' Motion Amended s Motion for Extension of Time to File Notice of Appeal (# 55) and the Defendant' response (# s 53, 57). On September 19, 2005, this Court granted (# 43) the Defendant' motion for summary s judgment and entered judgment (# 44) in favor of the Defendant. Pursuant to Fed. R. App. P. 4(a)(1)(A), the Plaintiff had 30 days from the entry of that judgment­i.e. until September 19, 2005­to file a Notice of Appeal. The Plaintiff filed his Notice of Appeal (# 47) on September 20, 2005, one day late.1

The Plaintiff also filed an Amended Notice of Appeal (# 48) on October 21, 2005, although the Court is unable to discern any difference between this document and the one filed on October 20, 2005. 1

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The Plaintiff then filed the instant motion, seeking an extension of time for filing the Notice of Appeal pursuant to Fed. R. App. P. 4(a)(5)(A). That Rule provides that " district The court may extend the time to file a notice of appeal if a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires and . . . . that party shows excusable neglect or good cause." Fed. R. App. P. 4(a)(5)(A)(i), (ii) (internal structure omitted). To show good cause or excusable neglect for the late filing, the Plaintiff represents that his counsel misread the Judgment, believing it to have been entered on September 20, 2005, and was ill and out of the office on September 19, 2005. The Defendant filed a response to the motion, arguing that the circumstances described by the Plaintiff do not constitute good cause or excusable neglect under Rule 4(a)(5). For purposes of Rule 4(a)(5), whether a party has shown " excusable neglect"justifying an extension is considered in light on four factors: (i) the danger of prejudice to the non-movant; (ii) the length of the delay and its potential impact on judicial proceedings; (iii) the reason for the delay, including whether it was within the reasonable control of the movant; and (iv) whether the movant acted in good faith. Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004); see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993) (interpreting " excusable neglect"standard for late filings in bankruptcy code); City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994) (" Because [Pioneer' analysis of s] what constitutes ` excusable neglect' the bankruptcy context rested on the plain meaning of the in terms, there is no reason that the meaning would be different in the context of Fed.R.App.P. 4(a)(5)" It is not necessary that the neglect arise from circumstances beyond the movant' ). s control, but " inadvertence [or] mistakes construing the rules do not usually constitute excusable 2

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neglect." Chanute, 31 F.3d at 1046 (internal quotes omitted). The Court must be mindful not to extend the time in the absence of circumstances that are unique and extraordinary. Bishop, 371 F.3d at 1207, citing Gooch v. Skelly Oil Co., 493 F.2d 366, 370 (10th Cir.1974). Three of the excusable neglect factors tip in favor of the movant­there is no indication that the one-day delay in filing the Notice of Appeal causes any prejudice to the Defendant or has adversely affected the proceedings, and there is no indication that the Plaintiff' counsel' mistake s s was a result of any bad faith. However, the third factor­" perhaps the most important single factor,"Chanute, 31 F.3d at 1046­weighs against the Plaintiff. At bottom, the Plaintiff' s counsel' explanation is that he simply misread or misunderstood the entry date of the Judgment.2 s This does not present a unique or extraordinary circumstance. Simply misreading or misunderstanding the date upon which a filing is due is a form of inadvertence or mistake. It is certainly constitutes carelessness or " neglect,"but here it is unaccompanied by circumstances suggesting that it is excusable. The Plaintiff' counsel does not point to any unusual s circumstances extant at the time he misread or misrecalled the date of entry of the Judgment that would transform this ordinary mistake into one which can be considered " excusable." Indeed, were the Court to grant relief under these circumstances, essentially any late filing occasioned by mistake of counsel would have to be deemed " excusable." The Court is mindful that denying the requested extension has severe consequences for both counsel and client. A busy lawyer can misread a docket sheet, or mistakenly transpose the deadline for filing an appeal with any one of a number of similar deadlines swirling about the
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The explanation of Plaintiff' counsel' illness on October 19, 2005 is of no moment, s s given counsel' acknowledgment that he believed that the Notice of Appeal was due on October s 20, 2005. 3

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calendar. Such a mistake will often have benign consequences, but the deadline for filing a Notice of Appeal is one of the few deadlines in a litigation that, if missed, is fatal to further proceedings. And, the Court is sympathetic to the fact that a routine error of otherwise minimal consequence by his counsel deprives the Plaintiff of any appellate review. At the same time, the Court' s empathy is constrained by the plain language of Rule 4(a)(5) and the standards laid down by the Supreme Court and 10th Circuit for evaluating claims of excusable neglect. Although the Court is reluctant to do so, it is nevertheless compelled on this record to hold that the Plaintiff has failed to show excusable neglect for the delay. With regard to the alternative standard of " good cause"under Rule 4(a)(5), " good cause" is a more narrow standard, employed where the " excusable neglect"analysis is inappropriate. Bishop, 371 F.3d at 1207. In these circumstances, " good cause"arises where there is no fault, excusable or otherwise, to be assessed, and the need for an extension arises from forces outside the control of the movant. Id. The circumstances described by the Plaintiff do not rise to the level of good cause.

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For these reasons, the Plaintiff' Amended Motion for Extension of Time to File a Notice s of Appeal (# 55) is DENIED. Dated this 9th day of November, 2005 BY THE COURT:

Marcia S. Krieger United States District Judge

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