Glenford Ragguette v. Premier Wines & Spirits , 691 F.3d 315 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 11-2553 and 11-2669
_______________
GLENFORD RAGGUETTE,
Appellant in No. 11-2553
v.
PREMIER WINES & SPIRITS,
Appellant in No. 11-2669
_______________
On Appeal from the District Court
of the Virgin Islands
(D.C. Civil No. 2-06-cv-00173)
District Judge: Hon. Timothy J. Savage
_______________
Argued May 9, 2012
BEFORE: CHAGARES, JORDAN and
COWEN, Circuit Judges
(Filed: August 15, 2012)
Lee J. Rohn, Esq.
E. Geoffrey Wolfe, Esq. (Argued)
Lee J. Rohn & Associates
1101 King Street
Christiansted, VI 00820
Counsel for Appellant in No. 11-2553
Anna H. Paiewonsky, Esq. (Argued)
6501 Red Hook Plaza, Suite 201
St. Thomas, VI 00802
Counsel for Appellant in No. 11-2669
_______________
OPINION
_______________
COWEN, Circuit Judge.
Plaintiff Glenford Ragguette appeals from the order of
the District Court of the Virgin Islands granting the motion
for summary judgment filed by Defendant Premier Wines and
Spirits, Ltd. In turn, Premier appeals from the order of the
District Court granting Ragguette‘s motion for an extension
of time to file a notice of appeal under Federal Rule of
Appellate Procedure 4(a)(5). We hold that the District Court
abused its discretion by finding that Ragguette established
―excusable neglect‖ under this rule. We accordingly
2
determine that the motion for an extension of time to file a
notice of appeal under Rule 4(a)(5) was improvidently
granted. We will therefore dismiss Ragguette‘s appeal for
lack of appellate jurisdiction.
I.
Ragguette alleged a number of employment
discrimination and related claims against his former
employer, Premier. Throughout this litigation, Ragguette has
been represented by attorneys from a firm currently known as
Lee J. Rohn & Associates—and primarily by Lee J. Rohn,
Esquire, herself.
In a January 5, 2010 order, the District Court granted
Premier‘s summary judgment motion and entered judgment in
favor of Premier and against Ragguette. The District Court
provided its reasons for this determination in an
accompanying memorandum opinion entered on the same
day.
Ragguette‘s counsel failed to file a notice of appeal
within 30 days of the judgment or order pursuant to Federal
Rule of Appellate Procedure 4(a)(1)(A). On January 13,
2010, Premier filed a motion for attorneys‘ fees and costs
under Federal Rule of Civil Procedure 68, specifically asking
for the award to be directed (jointly and severally) against
Ragguette and his counsel. Ragguette submitted an
opposition to this fee motion on January 28, 2010. In a
February 8, 2010 order, the District Court scheduled a fee
hearing for February 23, 2010. But, on February 24, 2010,
3
the hearing was rescheduled for March 1, 2010. Following
this hearing, Premier filed a contested motion to amend its fee
motion, requesting, among other things, a fee award directed
against Rohn in her individual capacity. The original motion
and the motion to amend, however, were subsequently
withdrawn by Premier.
On March 5, 2010, Ragguette filed a motion for
issuance of an order pursuant to Federal Rule of Civil
Procedure 58(e), or, in the alternative, for an order granting
an extension of time to file a notice of appeal pursuant to
Federal Rule of Appellate Procedure 4(a)(5). With respect to
the alternative form of relief, he argued, inter alia, that his
attorney‘s failure to file a timely notice of appeal was caused
by excusable neglect. In short:
Because of trial preparation for several
other cases, counsel failed to actually issue the
computer task. Specifically, counsel annotated
the order as to appeal issues and provided it to
the secretary on the case. The procedure in the
office is that a task should have been generated
by counsel to file the notice of appeal at the
same time. The secretary scanned the order
with the annotation in to the system on January
11, 2010 (Exhibit 1) but because there was no
task did not prepare the appeal. Counsel was
unaware that the notice of appeal had not been
e-filed and did not discover the same until
preparing for the hearing on the fee issue when
she did not find a notice of appeal in the
4
computer file.
In this case, the failure to file a timely
notice of appeal was due to excusable neglect,
so as to warrant the granting of the motion for
extension of time. The objective record shows
that lead counsel for Plaintiff ―annotated the
Memorandum Opinion of the summary
judgment ruling to be used to draft the notice of
appeal to move to appeal on the grounds as
noted in the annotated document, and on the
ground of the rulings denying discovery. See
screen shot showing date the annotated
judgment was scanned as of January 11, 2010
(Exhibit 1). Counsel had requested that the
annotated motion be scanned into the appeals
file. See, Exhibit 1, the annotations on the
Memorandum. Counsel was in trial and in
mediations and then off island as set forth
herein.
It has now come to counsel‘s attention
that all that was done was that the annotated
Memorandum Opinion was scanned. The fact
that counsel was off-island, and the fact that in
her absence, the notice would have been
prepared and reviewed and filed by another
staff attorney, Counsel reasonably thought that
the task had been issued.
(A343-A344 (error in original).) A so-called ―screen shot‖
5
(which listed a pdf file entitled ―Annotations-re-
Memorandum-Opinion-and-Thoughts-for-Appeal-
01/11/2010‖ and indicated that this document was last
modified at 7:44 a.m. on January 11, 2010) was attached as
Exhibit 1 to Ragguette‘s motion. (Dist. Ct. Dkt. Entry #137-
1.)
Premier filed its opposition to this motion on March
16, 2010, and Ragguette submitted a reply on April 1, 2010.
He also submitted an affirmation from Rohn herself as well as
an annotated copy of the District Court‘s January 5, 2010
memorandum opinion (attached as Exhibit A). Rohn
provided the following explanation for why the notice of
appeal had not been filed:
2. As represented in the Motion for
Issuance of An Order pursuant Pursunat-to-
FRCP 58(e)-or-in-the-Alternative-an-Order-
Granting-an-Extention-of-Time-to-File-a-
Notice-of-Appeal-03-05-2010 after annotating
the court‘s ruling, I submitted to my legal
assistant and new motions attorney the
annotated ruling, with the intention that a notice
of appeal should be filed on the grounds as
annotated in the ruling. See, Exhibit A,
Annotated Ruling.
3. I had a mental lapse and failed to realize
I was working with my relatively new motion
attorney and not my former associate and
partner of over 11 years who would have
6
correctly interpreted my notes and
automatically calendared and drafted a notice of
appeal without the need of a specific task,
instead of simply filing the annotated decision.
I further intended to issue a task and reasonably
thought I had done so. It appears I either didn‘t
send the task or didn‘t complete the procedure
as no task was generated by the computer.
4. That my intention was to appeal the
ruling is manifest from the annotated decision.
5. Given the press of matters requiring my
attention, matters that are objectively verifiable,
it is understandable and reasonable under the
circumstances that this oversight occurred.
6. I honestly believed that a notice of
appeal was filed in accordance with my
annotations on the decision.
7. I did not mention the intent to appeal
during the hearing regarding the motion for fees
because I wanted to verify my records as to
what occurred.
(A355-A356 (errors in original).) There were a number of
handwritten comments and notations on the annotated
memorandum opinion. Most significantly, the following
comment was written at the top of the first page: ―*Scan in as
‗thoughts Re appeal‘.‖ (A357.)
7
The District Court denied Ragguette‘s motion on May
14, 2010. Ragguette filed a notice of appeal on May 20, 2010
(a notice of appeal was previously entered on the docket on
May 17, 2010, but Ragguette was then directed to refile using
the correct prompt). On April 19, 2011, we upheld the
District Court‘s denial of his request for an order under
Federal Rule of Civil Procedure 58(e) because Premier never
filed the appropriate motion for fees and costs pursuant to
Federal Rule of Civil Procedure 54(d)(2). However, we
vacated the District Court‘s denial of his request for relief
under Rule 4(a)(5) and remanded ―the case to the District
Court to analyze whether the neglect at issue in this case was
excusable under the Pioneer standard.‖ Ragguette v. Premier
Wines & Spirits, Ltd., 424 F. App‘x 155, 157 (3d Cir. 2011)
(footnote omitted). We explained that the Supreme Court‘s
ruling in Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380 (1993),
established an equitable approach to the ―excusable neglect‖
determination. While a court must still take into account all
of the relevant circumstances, ―Pioneer provides four factors
to consider when making this equitable determination: (1) the
danger of prejudice to the non-movant; (2) the length of the
delay and the 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 movant acted in
good faith.‖ Ragguette, 424 F. App‘x at 156-57 (citing
Pioneer, 507 U.S. at 395). We concluded that the District
Court abused its discretion by disposing of the Rule 4(a)(5)
motion ―‗without an opinion, without a reason, and more
importantly, without reference to the Pioneer four-factor
8
balancing standard.‘‖ Id. at 157 (quoting In re Diet Drugs
Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir. 2005))).
On May 16, 2011, Premier filed its supplemental
opposition to the Rule 4(a)(5) motion. Among other things,
Premier referred to Ragguette‘s testimony at a recusal hearing
held before the District Court on January 26, 2011. It also
submitted a letter to Ragguette from a legal assistant at the
Rohn law firm named Enith Abraham, which was dated
January 14, 2000 and stated that the enclosed documents were
being returned to him for his records. Most significantly,
Premier attached as an exhibit a series of e-mails exchanged
by Rohn and Glenda Cameron, Esquire (who was then
working with the firm on a contract basis), which had been
produced in connection with an unsuccessful recusal motion
previously filed by Ragguette and other Rohn clients.
Rohn began the rather lengthy e-mail chain at 2:03
p.m. on March 1, 2010:
it appears that the order on summary judgment
came in on January 5, 2010. although I did an
annotation of the order and instructed taht it be
placed in the appeal file after the finling of the
notice of appeal, the appeal was not filed. i
only learned about it to day when prepping for
argument on the issue of whether defendant can
be awarded fees and costs. that hearing was
today. the motion had originally been brought
under rule 68 re offer of judgment. but at
argument today the defendant stated it wanted
9
to add an argument under title vii that the
complaint was frivolous and as such defendant
should be awarded fees. the judge then invited
her to also make an argument that the fees
should be against counsel and not plaintiff. we
argued the motion woould not be timely and
opposed. court granted her a week to amend
her motion to add issues re why case was
frivolous etc and why fees should be awarded
under title vii. can I use that pending motion to
file the appeal of hte underlying order for sj to
wait and file appeal until that motion is ruled
on? if not is there someway I can file the
appeal out of time.
(A406 (errors in original).) The two attorneys then
exchanged e-mails addressing, among other things, the
different options that could be available to pursue an appeal,
when any motion for relief should be filed and what should be
included, legal research, and the drafting of the motion itself.
Asked by Cameron to provide ―facts showing ‗good cause‘
for the failure to file the notice of appeal,‖ Rohn explained
that:
I annotated the sj ruling and stated move to
appeal along with rulings denying discovery.
Please scan in appeal file. Instead all that was
done was it was scanned into appeal file. I got a
task response done. I thought it meant both. It
only meant scanned. Normally under old rules I
would know if notice done because it would
10
have been signed and physically filed. With
new if I am not there it just gets e filed so I have
no way of on hand monitoring. I did not realize
not filed til prepared for argument on atty fees
motion
(A396 (errors in original).)
On May 20, 2011, the District Court conducted a
hearing on the Rule 4(a)(5) motion. Ragguette was not
present, but Rohn provided a detailed (if unsworn) account of
what had happened.
Rohn told the District Court that her firm used a
system of ―computer tasks‖ and ―paper tasks‖ for making and
monitoring assignments. The Outlook computer program‘s
task system apparently allows Rohn to assign a particular task
to a specific subordinate together with a deadline for
performing the task itself. If the subordinate does not
complete the task within the time limit, ―that task comes back
to you in red saying, this task has not been done.‖ (A451.)
On the other hand, there is also ―the physical paper, and the
conversation.‖ (Id.) Rohn claimed that, although she
believed that she had successfully generated both a computer
task as well as a paper task, she actually only ever created a
paper task.
Rohn further explained that the new attorney or
appellate motions clerk assigned this task ultimately worked
for the firm for less than a year (and, at the time at issue here,
had not been with the firm for a very long time). Rohn
11
confirmed that ―I don‘t get any ECF1 files at all, because I
don‘t monitor those deadlines,‖ and that, instead, ―all the ECF
filings in my office, even [those] directed to me internally
through technology, go to the attorney who is actually in
charge of monitoring those [cases].‖ (A440 (footnote
added).) Although a self-confessed ―control freak‖ who likes
to review every document with her signature (A444), it is still
possible that she would not review a particular motion, even
though it has her ―computer signature on it,‖ if she was
unavailable at the time that the document had to be filed
(A441). She denied taking the position that she missed the
deadline in this case simply because there ―was just too much
going on.‖ (A444.) In contrast, she purportedly missed this
deadline because she believed the notice of appeal had been
filed given the fact that she ―instructed that it be filed‖ and
―gave the document to the motions clerk to assign it and to do
the notice of appeal,‖ which would then have gone out (after
being reviewed by at least one attorney at her firm) as a non-
substantive but time-sensitive filing. (A444-A445.) In other
words, Rohn‘s various activities at the time that the notice of
appeal should have been filed established ―why the appeal,
the notice of appeal to be signed would not have necessarily
come to me‖ and why she ―wouldn‘t have notice that
someone else didn‘t sign the notice of appeal.‖ (A445-A446.)
Rohn further indicated that, after the entry of the summary
judgment order, she consulted with her client about filing an
1
The Case Management / Electronic Case Filing
(CM/ECF) system is a computer case management system
that allows courts to maintain electronic case files and
attorneys to file (and serve) documents through the Internet.
12
appeal and that he was in agreement with this course of
action. She also claimed that it was not her experience that
the Third Circuit sends out scheduling orders within 7 to 10
days of the filing of a notice of appeal. According to Rohn,
this Court instead sends out a mediation order around 30 days
after the notice of appeal‘s filing, and a transcript purchase
order or anything else would have gone to Rohn‘s associate—
not Rohn. In any case, she purportedly would have
discovered the oversight when the appellate briefing
schedules were not issued 45 or 60 days after the notice of
appeal was supposed to be filed.
In the end, Rohn accepted ―responsibility that while I
believed that I had followed my regular procedure of the
office, which is a computer tasking system to follow
deadlines, it appears that I inadvertently did not do so.‖
(A451.) She defended her firm‘s ―very involved expensive
computer system to track documents,‖ and claimed that this
case involved nothing more than unfortunate ―human error,‖
which is the kind of mistake that everybody makes. (A452.)
On June 7, 2011, the District Court granted
Ragguette‘s motion for an extension of time to file a notice of
appeal under Rule 4(a)(5). Applying the Pioneer factors, the
District Court focused on the circumstances as they existed on
the day the motion was actually filed. It did so because any
subsequent delay cannot be attributed to Ragguette and
instead resulted from the judicial proceedings. ―Ragguette
offers his attorney‘s mistake in following-up instructions to
her staff to file a notice of appeal as the excuse for missing
the filing deadline.‖ Ragguette v. Premier Wines & Spirits,
13
Ltd., Civil Action No. 2006-0173, 2011 WL 2359920, at *1
(D.V.I. June 7, 2011). According to the District Court,
Ragguette had failed to articulate any specific reason for not
filing a timely notice of appeal in his original motion and had
instead merely cited to his attorney‘s busy schedule. At the
hearing, his attorney ―represented that she had made a
mistake when she failed to complete an additional step in the
computer process in her office,‖ which meant that ―her staff
never received the instructions to perfect an appeal.‖ Id. In
turn, this attorney provided support for her representation
―with a screen shot of the computer message.‖ Id. The
District Court also acknowledged that the ―timing of the Rule
4 motion is consistent with the defendant‘s suspicion [that
Ragguette never intended to take an appeal and that his
attorney decided to file one in retaliation for Premier‘s fee
proceeding],‖ but it then added that there was no evidence to
confirm this suspicion. Id. Therefore, the District Court
found that the failure to file the notice of appeal was caused
by attorney ―inadvertence.‖ Id. It then stated that:
The delay, measured at the time Ragguette
filed his motion, was twenty-nine days, but
within the time for filing the Rule 4 motion.
His attorney stated that only when she was
preparing for the hearing on the motion for
attorney‘s fees did she realize that the appeal
had not been taken. She then sought advice on
how to remediate her failure. There is no
indication that she purposefully waited until the
penultimate day to file the motion. Under the
circumstances, the delay was not inordinate.
14
Nor was it in bad faith. The defendant argues
that it will be prejudiced by the passage of time
because witnesses have become unavailable and
memories are fading. It also complains about
the significant costs it has expended since the
entry of judgment in its favor and will incur in
the future. The first concern regarding the
witnesses is not compelling. Ragguette seeks
leave to appeal. No witnesses are necessary on
appeal. The record is closed. In the event
Ragguette‘s appeal is denied, there will be no
need for witnesses. On the other hand, if he
prevails, witnesses will be necessary at a trial.
The defendant would face either situation had
Ragguette filed a timely appeal. Nor is there
evidence that defendant has incurred any
significant costs since the entry of judgment, or
that it will incur significant future costs
connected to this motion. Again, at this point,
any delay beyond the twenty-nine days was not
Ragguette‘s fault. Moreover, there is no
demonstration of actual harm to the defendant
as a result of the late filing.
Id. at *1.
Pursuant to the District Court‘s order granting his Rule
4(a)(5) motion, Ragguette filed, on June 8, 2011, a notice of
appeal with respect to the order granting summary judgment.
Premier likewise appealed from the District Court‘s Rule
4(a)(5) order itself, which this Court has treated as a cross-
15
appeal.
II.
The District Court had jurisdiction over this
employment case pursuant to 28 U.S.C. §§ 1331 and 1367.
As we explain in more detail in Section III, infra, we must
dismiss Ragguette‘s appeal because of the absence of
appellate jurisdiction.
It is uncontested that this Court generally reviews a
district court‘s decision whether or not to grant an extension
of time to file a notice of appeal for an abuse of discretion.
See, e.g., In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143,
153 (3d Cir. 2005). The district court abuses its discretion if
its decision rests upon a clearly erroneous finding of fact, an
errant conclusion of law, or the improper application of law to
fact. See, e.g., In re Cendant Corp. Prides Litig., 233 F.3d
188, 192 (3d Cir. 2000). ―An abuse of discretion may also
occur when ‗no reasonable person would adopt the district
court‘s view.‘‖ Id. (quoting Oddi v. Ford Motor Co., 234
F.3d 136, 146 (3d Cir. 2000)). ―Finally, ‗we will not interfere
with the [D]istrict [C]ourt‘s exercise of discretion ―unless
there is a definite and firm conviction that the court . . .
committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors.‖‘‖ Id.
(quoting same).
III.
28 U.S.C. § 2107(a) states that: ―Except as otherwise
provided in this section, no appeal shall bring any judgment,
16
order or decree in an action, suit or proceeding of a civil
nature before a court of appeals for review unless notice of
appeal is filed, within thirty days after the entry of such
judgment, order or decree.‖ Pursuant to this statutory
provision, Federal Rule of Appellate Procedure 4(a)(1)(A)
provides that, ―[i]n a civil case, except as provided in Rules
4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by
Rule 3 must be filed with the district clerk within 30 days
after entry of the judgment or order appealed from.‖ The
Supreme Court has determined that ―the timely filing of a
notice of appeal in a civil case is a jurisdictional
requirement.‖ Bowles v. Russell, 551 U.S. 205, 214 (2007).
Ragguette was required to file a notice of appeal
within the applicable 30-day time period following the
January 5, 2010 entry of the order granting Premier‘s motion
for summary judgment. In other words, he had to file his
notice of appeal on or before February 4, 2010. He clearly
failed to do so.
However, the district courts do ―have limited authority
to grant an extension of the 30-day time period.‖ Id. at 208.
28 U.S.C. § 2107(c) provides that ―[t]he district court may,
upon motion filed not later than 30 days after the expiration
of the time otherwise set for bringing appeal, extend the time
for appeal upon a showing of excusable neglect or good
cause.‖ Federal Rule of Appellate Procedure 4(a)(5)
authorizes a party to file such a ―Motion for Extension of
Time.‖ This rule currently provides that:
(A) The district court may extend the time to
file a notice of appeal if:
17
(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.
(B) A motion filed before the expiration of the
time prescribed in Rule 4(a)(1) or (3) may be ex
parte unless the court requires otherwise. If the
motion is filed after the expiration of the
prescribed time, notice must be given to the
other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may
exceed 30 days after the prescribed time or 14
days after the date when the order granting the
motion is entered, whichever is later.
Ragguette filed his motion on Friday, March 5, 2010, which
was 59 days after the entry of the order. Because the 60th
day was a Saturday, he actually had until the next business
day, Monday, March 8, 2010, to file his Rule 4(a)(5) motion.
See, e.g., Fed. R. App. P. 26(a)(1)(C). In any case, Ragguette
thereby ―filed a timely motion for an order granting an
extension of time to file a notice of appeal under Fed. R. App.
P. 4(a)(5).‖ Ragguette, 424 F. App‘x at 155 (footnote
18
omitted). Because this motion was filed in a timely fashion
(and the ―good cause‖ component of the rule is not at issue
here),2 the basic question now before us is whether or not the
2
The good cause standard ―applies in situations in
which there is no fault – excusable or otherwise.‖ Fed. R.
App. 4 (Advisory Committee‘s Notes on 2002 Amendments).
Courts, including our own, historically held that the ―good
cause‖ language in Rule 4(a)(5) was inapplicable if the
request for the extension was made after the period for filing
a timely notice of appeal expired. See, e.g., Consol.
Freightways Corp. of Del. v. Larson, 827 F.2d 916, 918 n.3
(3d Cir. 1987) (explaining that ―good cause‖ is basis for
extending time to file appeal ―only if the request is made
within the original 30 day period for taking the appeal‖ and
that ―[a]ny request for extension filed after the original period
has run is governed by the excusable neglect standard‖
(citations omitted)); Fed. R. App. P. 4 (Advisory Committee‘s
Notes on 2002 Amendments) (describing ―misunderstanding‖
whereby ―most of the courts of appeals have held that the
good cause standard applies only to motions brought prior to
the expiration of the original deadline‖). The rule was
amended in 2002 to make clear that any that any such
interpretation is mistaken and that ―good cause‖ and
―excusable neglect‖ are separate bases upon which a Rule
4(a)(5) extension can be granted regardless of when the
requesting motion is made. See Fed. R. App. P. 4 (Advisory
Committee‘s Notes on 2002 Amendments) (―[A] motion for
an extension filed during the 30 days following the expiration
of the original deadline may be granted if the movant shows
either excusable neglect or good cause.‖).
19
District Court abused its discretion by finding that Ragguette
(and Rohn) established ―excusable neglect‖ under Rule
4(a)(5). We must answer this question in the affirmative.
In our previous ruling in this case, we turned to the
factors identified by the Supreme Court in Pioneer Investment
Services Co. v. Brunswick Associates Limited Partnership,
507 U.S. 380 (1993). The Court considered the meaning of
the term ―excusable neglect‖ in the specific context of a
bankruptcy rule permitting a late filing of a proof of claim by
a creditor if the failure to comply with the deadline (or ―bar
date‖) was the result of excusable neglect. Id. at 382-83.
Most significantly, it emphasized that the whole notion of
excusable neglect implicates an equitable inquiry and thereby
went on to provide a number of factors to be taken into
account in this analysis:
This leaves, of course, the Rule‘s
requirement that the party‘s neglect of the bar
date be ―excusable.‖ It is this requirement that
we believe will deter creditors or other parties
from freely ignoring court-ordered deadlines in
the hopes of winning a permissive reprieve
under Rule 9006(b)(1). With regard to
determining whether a party‘s neglect of a
deadline is excusable, we are in substantial
agreement with the factors identified by the
Court of Appeals. Because Congress has
provided no other guideposts for determining
what sorts of neglect will be considered
―excusable,‖ we conclude that the determination
20
is at bottom an equitable one, taking account of
all relevant circumstances surrounding the
party‘s omission. These include, as the Court
of Appeals found, the danger of prejudice to the
debtor, the length of the delay and its potential
impact on judicial proceedings, the reason for
the delay, including whether it was within the
reasonable control of the movant, and whether
the movant acted in good faith.
Id. at 395 (footnotes omitted) (citations omitted). ―Although
inadvertence, ignorance of the rules, or mistakes construing
the rules do not usually constitute ‗excusable‘ neglect, it is
clear that ‗excusable neglect‘ under [Federal Rule of Civil
Procedure] 6(b) [allowing district courts to enlarge the period
of time] is a somewhat ‗elastic concept,‘ and is not limited
strictly to omissions caused by circumstances beyond the
control of the movant.‖ Id. at 392 (footnotes omitted). On
the other hand, the neglect of both the party as well as the
party‘s own attorney must be taken into account, and the
Pioneer Court accordingly rejected the circuit court‘s
suggestion that it would be improper to penalize a party for
the omissions of counsel. Id. at 396-97.
The Supreme Court noted that the debtor did not
challenge the bankruptcy court‘s findings concerning the
creditors‘ good faith and the absence of any danger of
prejudice to the debtor or of disruption to efficient judicial
administration. Id. at 397-98. It further indicated that it was
not inclined to unsettle factual findings entered by a
bankruptcy court and upheld by both the district and circuit
21
courts on appeal. Id. In fact, the bankruptcy court observed
that the debtor‘s reorganization plan had taken into account
the late claims. Id. In the absence of any evidence of
prejudice, disruption, or bad faith, ―the unusual form of notice
[of the bar date] employed in this case requires a finding that
the neglect of respondents‘ counsel was, under all the
circumstances, ‗excusable.‘‖ Id. at 398-99. The Pioneer
Court also noted that counsel was still ―remiss in failing to
apprehend the notice,‖ and it accorded ―little weight to the
fact that counsel was experiencing upheaval in his law
practice at the time of the bar date‖ in assessing his
―culpability.‖ Id. at 398.
We have applied Pioneer‘s equitable approach in a
variety of circumstances, including proceedings under Rule
4(a)(5). See, e.g., In re Diet Drugs Prods. Liab. Litig., 401
F.3d 143, 153-54 (3d Cir. 2005). However, even prior to the
Supreme Court‘s opinion, we addressed at some length the
―excusable neglect‖ concept in the specific context of a
motion for an extension of time to file a notice of appeal
pursuant to Rule 4(a)(5).
In Consolidated Freightways Corp. of Del. v. Larson,
827 F.2d 916 (1987), the Pennsylvania Attorney General‘s
Office prepared a notice of appeal in a Middle District of
Pennsylvania case on December 18, 1986, one day before the
30-day limit for filing a notice of appeal expired. Id. at 917.
However, the notice of appeal incorrectly identified the
district as the Eastern District of Pennsylvania. Id. Instead of
being hand delivered to the Middle District Clerk‘s Office in
Harrisburg (which was actually adjacent to the Attorney
22
General‘s Office), it was mailed to the Eastern District
Clerk‘s Office (which received the document on December
22, 1986 and then forwarded it to the Middle District, where
it arrived on December 24, 1986). Id. When notified by the
Third Circuit Clerk‘s Office of a possible procedural defect,
counsel immediately applied for a 5-day extension of time.
Id. at 917-18. The district court denied this motion, but we
concluded that ―the district court erred as a matter of law in
its rigid application of 4(a)(5).‖ Id. at 918.
Rejecting the district court‘s attempt to establish a per
se standard, we emphasized that the rule ―requires a case-by-
case analysis‖ as well as specific findings by the district court
regarding ―the reasons underlying counsel‘s inadvertence.‖
Id. at 919. Noting the existence of ―a qualitative distinction
between inadvertence which occurs despite counsel‘s
affirmative efforts to comply and inadvertence which results
from counsel‘s lack of diligence,‖ we went on to provide a
non-exclusive list of factors to guide the district court‘s
exercise of discretion:
Although every case must be examined
on an ad hoc basis and it is impossible to
compose an exhaustive list of factors relevant to
a determination of whether excusable neglect
has occurred, a thoughtful analysis of this issue
in a particular context will, at a minimum,
require a weighing and balancing of the
following factors: (1) whether the inadvertence
reflects professional incompetence such as
ignorance of the rules of procedure, Campbell
23
v. Bowlin, 724 F.2d 484 (5th Cir. 1984) (failure
to read rules of procedure not excusable); (2)
whether the asserted inadvertence reflects an
easily manufactured excuse incapable of
verification by the court, Airline Pilots v.
Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.
1978) (mistake in diarying counsel‘s calendar
not excusable); (3) whether the tardiness results
from counsel‘s failure to provide for a readily
foreseeable consequence, United States v.
Commonwealth of Virginia, 508 F. Supp. 187
(E.D. Va. 1981) (failure to arrange coverage
during attorney‘s vacation which encompassed
end of appeal period not excusable); (4)
whether the inadvertence reflects a complete
lack of diligence, Reinsurance Co. of America,
Inc. v. Administratia, 808 F.2d 1249 (7th Cir.
1987); or (5) whether the court is satisfied that
the inadvertence resulted despite counsel‘s
substantial good faith efforts toward
compliance.
Id. at 919.
We then determined, inter alia, that: (1) the attorney‘s
mistake was not the result of professional incompetence; (2)
he was not attempting to create some sort of facile excuse to
extend the time to appeal and, on the contrary, gained nothing
from his error; (3) this type of human error, though avoidable,
was not readily foreseeable; and (4) the attorney otherwise
acted with due (if not perfect) diligence and in good faith in
24
attempting to comply with Rule 4(a)(5) (including, among
other things, drafting the notice of appeal within the 30-day
limit, serving the notice of appeal on opposing counsel in a
timely fashion, and then expeditiously filing a motion for an
extension of time). Id. at 919-20. ―This court interprets Rule
4(a)(5) to require a finding of excusable neglect in those
instances where the court, after weighing the relevant
considerations is satisfied that counsel has exhibited
substantial diligence, professional competence and has acted
in good faith to conform his or her conduct in accordance
with the rule, but as a result of some minor neglect,
compliance was not achieved.‖ Id. at 920. While
emphasizing that the mistake there could have been detected
by careful proofreading, we believed that even the most
diligent attorneys are subject to these kinds of common
human errors and, in particular, do not need to be reminded to
address their mail accurately or to caption their cases
properly. Id. Even though the district court‘s approach might
have effectively deterred incompetence or callous disregard
for the rules in some circumstances, it would serve ―little
deterrent purpose‖ in the context of human errors that are
―not readily capable of regulatory control.‖ Id. We further
noted that, ―[w]here as here the delay was minimal, and
where the court has determined that the delay was not the
result of any bad faith but rather occurred despite counsel‘s
substantially diligent efforts at compliance, the judicial
interest in deciding cases on the merits outweighs the interests
in finality.‖ Id. However, we also acknowledged that our
opinion ―does not require the absolution of any and all
clerical errors committed by counsel as excusable neglect,‖
and we were confident that ―[t]he threshold requirement of
25
establishing substantial good faith efforts to comply readily
eliminates the most common errors from the excusable
neglect analysis.‖ Id. at 921. Declining to hold that the
failure to proofread a caption must be deemed to be
inexcusable in each and every case, we held that such a
failure was excusable given the factual context presented. Id.
We agree with Premier that the factors identified in
Consolidated should still be considered in applying the
overall approach subsequently set forth by the Supreme Court
in Pioneer. In fact, we actually cited our Consolidated
opinion with approval in our prior ruling in this case vacating
the District Court‘s order and remanding for further
proceedings. See Ragguette, 424 F. App‘x at 156.
Furthermore, our reasoning in Consolidated essentially
anticipated the approach taken by the Supreme Court itself,
and we note that the Pioneer Court even acknowledged our
Consolidated opinion as an example of a circuit court
adopting ―a more flexible approach,‖ Pioneer, 507 U.S. at 387
n.3. It therefore is not surprising that we have continued to
cite to—and quote with approval from—Consolidated as well
as our subsequent decision in Dominic v. Hess Oil V.I. Corp.,
841 F.2d 513, 517 (3d Cir. 1988) (turning, in service of
process context, to five express factors identified in
Consolidated as well as sixth factor for ―whether the
enlargement of time will prejudice the opposing party‖). For
instance, we indicated that ―[t]hese six factors, announced in
Dominic before Pioneer was decided, present a more specific
application of the general considerations later announced by
the Supreme Court in Pioneer.‖ In re Orthopedic Bone Screw
Prods. Liab. Litig., 246 F.3d 315, 323 (3d Cir. 2001). In
26
other words, ―the Dominic factors that were not restated in
Pioneer were instead subsumed in the more general
consideration of ‗reason for the delay.‘‖ Id. (quoting In re
Cendant Corp. Prides Litig., 233 F.3d 188, 196 n.8 (3d Cir.
2000)); see also, e.g., Cendant, 233 F.3d at 197 n.8
(―Additionally, the District Court mentioned the three factors
we identified in a case predating Pioneer, Dominic v. Hess
Oil V.I., 841 F.2d at 517 (inadvertence reflecting professional
incompetence, excuse incapable of verification, complete lack
of diligence), though these are arguably integrated within the
fourth Pioneer factor, ‗reason for the delay.‘‖).
Ragguette, however, contends that, because Premier
had argued in the prior appeal in this case that the evidence
was legally insufficient to show excusable neglect, this Court
necessarily determined in its prior ruling that this evidence
was sufficient for the District Court to rule in his favor.
Simply put, Ragguette is reading too much into our prior
ruling. We merely vacated the District Court‘s denial and
remanded for further proceedings because ―the District Court
disposed of Ragguette‘s motion ‗without an opinion, without
a reason, and more importantly, without reference to the
Pioneer four-factor balancing standard.‖ Ragguette, 424 F.
App‘x at 157 (quoting Diet Drugs, 401 F.3d at 154). It is
now our task to ascertain whether the District Court
appropriately exercised its discretion by finding that ―the
27
neglect at issue in this case was excusable under the Pioneer
standard.‖3 Id. (footnote omitted).
3
We further note that Premier argues at some length
that neither Rohn nor her client ever really intended to pursue
an appeal, at least before the 30-day period to file a notice of
appeal had already expired. In fact, it vigorously attacks
Rohn‘s own motivations, suggesting, for instance, that
―counsel for Ragguette appeared more concerned with
avoiding fees and costs being assessed against her.‖
(Premier‘s Brief at 26.) Based, among other things, on the
screen shot, the annotated memorandum opinion, and the
subsequent e-mail exchange between Rohn and Cameron, it
appears that a prior intention to pursue an appeal did exist in
this case. We recognize that that ―the timing of the Rule 4
motion is consistent with the defendant‘s suspicion.‖
Ragguette, 2011 WL 2359920, at *1. Likewise, Rohn‘s
return of documents to Ragguette is suspicious given that
such documents would be useful for the appeal that she
professed she intended to file. Nevertheless, we believe that
the District Court did not abuse its discretion by finding that
there was ―no evidence to confirm‖ Premier‘s suspicion that
Rohn was acting in a retaliatory manner. Id.
28
Premier also argues ―that the absence of a
notice of appeal within 60 days is a factor in the Pioneer test
as it pertains to the length of the delay, the reason for the
delay and whether counsel acted in good faith and the
prejudice to Premier for the delay.‖ (Premier‘s Brief at 26.)
For instance, Premier asserts that the delay at issue here ―was
from January 5, 2010 to June 8, 2011.‖ (Id. at 30.) While
these kinds of considerations do not appear to be totally
irrelevant to the Pioneer inquiry, we note that Premier itself
acknowledges that this Court ―has already ruled that for the
purpose of the motion for extension of time a notice of appeal
is not required within the 60 days.‖ (Id. at 26.) Observing
that any subsequent delay was largely caused by the judicial
proceeding itself, the District Court appropriately focused on
―the circumstances as they existed on March 2, 2010, when
the plaintiff filed his Rule 4(a)(5) motion.‖ Ragguette, 2011
WL 2359920, at *1.
29
We begin, like the District Court, with the ―reason for
the delay‖ factor. We agree with Premier that the District
Court abused its discretion in its evaluation of this particular
factor. We accordingly must reject Ragguette‘s theory that
there was a reasonable explanation for the delay and that this
delay resulted from various circumstances beyond the control
of his counsel. Simply put, it cannot be said that Ragguette‘s
attorney ―has exhibited substantial diligence, [and]
professional competence, . . . but as the result of some minor
neglect, compliance was not achieved.‖ Consolidated, 827
F.2d at 920. In addition, Ragguette‘s counsel clearly ―fail[ed]
to provide for . . . readily foreseeable consequence[s].‖ Id. at
919 (citations omitted).
Because we ultimately conclude that the District
Court abused its discretion by finding that Ragguette
established excusable neglect, we need not—and do not
reach—the various evidentiary challenges raised by Premier
in its appeal (i.e., challenging the unsworn statements made
by Rohn in the motion papers as well as at the hearing itself).
On the other hand, we do reject Ragguette‘s theory that the
Rohn-Cameron e-mail chain was covered by the attorney-
client privilege, protected by the attorney work product
doctrine, and had been obtained pursuant to an improper
order issued by the District Court in conjunction with a
consolidated recusal motion. We note that, among other
things, Ragguette did not object to the submission of these
documents to the District Court in connection with his Rule
4(a)(5) motion, and, on the contrary, Rohn actually relied on
this documentation at the Rule 4(a)(5) hearing.
30
Initially, the District Court found that the failure to file
the notice of appeal was caused by attorney inadvertence—
specifically Rohn‘s own failure ―to complete an additional
step in the computer process in her office,‖ which meant that
―her staff never received the instructions to perfect an
appeal.‖ Ragguette, 2011 WL 2359920, at *1. We add that it
appears highly doubtful that the firm‘s relatively new motions
or appellate attorney would have understood that she was to
have prepared and filed a notice of appeal based on the
following cursory comment on the annotated memorandum
opinion: ―*Scan in as ‗thoughts Re appeal‘.‖ (A357.) In
fact, the associate apparently did exactly what the comment
told her to do—she had the document scanned. It is also
unclear when exactly Cameron left the firm and how long her
replacement had been working there by the time the notice of
appeal had to be filed. In any case, we believe that a
reasonably competent attorney would have exercised more
supervision and control over a purportedly new and
inexperienced subordinate. Rohn, at the very least, should
have done more than make a number of vague annotations on
the district court‘s ruling and should have anticipated that a
relatively new employee would need more direction. We also
are troubled by the fact that Rohn essentially and rather
conveniently sought to shift at least some of the blame from
herself to another person (who actually was no longer with
the firm by the time of the Rule 4(a)(5) hearing, did not
submit any declaration in support of the motion, and did not
appear at the hearing itself).
Rohn likewise acknowledged that she personally failed
to create the requisite ―computer task‖ as per her firm‘s usual
31
practices. She thereby clearly carried at least partial
responsibility for the breakdown in her firm‘s internal
procedures. In fact, the failure to create the critical computer
task meant that this system was never really triggered in the
first place.
We add that the firm‘s own procedures had some
serious deficiencies of their own. As noted above, the proper
completion of a computer task was evidently necessary to
trigger this computer tracking system in the first place.
Turning to the more significant matter of the ECF system, we
do acknowledge that attorneys, especially well-established
lawyers like Rohn, could have difficulties adjusting to this
mechanism of electronic case filing (as well as other
computer procedures). However, it is also undisputed that
Rohn herself had previously registered as an ECF user
sometime before the beginning of 2010. Rohn (or at least
someone in her office using her ECF account) has actually
filed numerous documents in this heavily litigated case via
the ECF system since September 2007. If a notice of appeal
had actually been filed (as Rohn evidently believed it had
been), a notice of such a filing would have immediately been
sent via e-mail to any and all attorneys who had previously
entered an appearance in the District Court proceeding.
Accordingly, Rohn should have known that no notice of
appeal had been filed because neither Rohn nor any other
attorneys from her firm who had entered an appearance in this
case ever received any notice of such a filing. Having not
received such a notice, any reasonably competent attorney
would have looked into whether a notice of appeal had been
32
properly filed—especially where such a critical task had been
assigned to a relatively new subordinate.
At the Rule 4(a)(5) hearing, Rohn actually
acknowledged that ―all the ECF filings in my office, even
directed to me internally through technology, go to the
attorney who is actually in charge of monitoring those,‖ and
that Rohn herself ―wouldn‘t have gotten an ECF back.‖
(A440.) At the very least, we believe that such an
arrangement was highly problematic. In particular, a
reasonably competent attorney who did not personally receive
or otherwise look at ECF notices would have to set up some
sort of additional method of keeping track of filings,
especially those filings submitted under her own ECF account
as well as critical filings like a notice of appeal. Such an
attorney would at least attempt to make sure that a notice of
appeal had been filed within the applicable 30-day period by,
for example, simply asking the subordinate whether—and
when—she had filed this critical document.
In fact, we previously turned to the ECF filing system
as a basis for rejecting a claim of excusable neglect. In Nara
v. Frank, 488 F.3d 187 (3d Cir. 2007), we concluded that ―the
Commonwealth‘s overall negligence in handling the [28
U.S.C. § 2254 habeas] matter precludes us from finding
‗excusable neglect‘‖ under Federal Rule of Civil Procedure
60(b) with respect to the Commonwealth‘s failure to file
timely objections to the magistrate judge‘s report and
recommendation, id. at 194. We noted, among other things,
that: ―[A]ttorneys practicing in the Western District of
Pennsylvania were under a standing order to register with the
33
Case Management/Electronic Case Files (CM/ECF) system
by July 1, 2005. If the Commonwealth‘s attorneys had
complied with that order, they would have received
immediate electronic notification that the Magistrate Judge
had issued the R & R and could have accessed it by hyper-
link.‖ Id. (footnotes omitted). In turn, ―[t]he
Commonwealth‘s Attorneys based in Harrisburg were
required to register in the Middle District of Pennsylvania in
2003.‖ Id. at 194 n.12 (citation omitted). Because of the lack
of excusable neglect, we proceeded to apply a plain error
standard of review. Id. at 193-97.
It is well established that a busy caseload generally
does not constitute a basis for a finding of excusable neglect.
See, e.g., Pedereaux v. Doe, 767 F.2d 50, 52 (3d Cir. 1985)
(―That counsel spent much of the latter period preparing for
the trial of other matters does not excuse the failure to attend
to the insubstantial task of filing a notice of appeal.‖).
Ragguette accordingly denies ever advancing such a theory in
the first place. But he also continues to highlight his
counsel‘s busy schedule during the relevant time period. For
example, Rohn raised the issue of her own caseload at the
hearing, purportedly in order to provide an explanation as to
why she would not necessarily have seen a notice of appeal
before its filing and why she would not have known that no
such notice had been prepared and filed. We believe that
Ragguette‘s attorney thereby attempted to draw too fine of a
distinction. Simply put, the busy caseload was essentially
offered as an ―excuse‖ for ―the failure to attend to the
insubstantial task of filing a notice of appeal.‖ Id. We also
believe that a reasonably competent attorney would have
34
better managed her own caseload and would have done more
to make sure that the critical task of properly filing a notice of
appeal was completed despite how busy she may have been at
the time.
We likewise determine that Rohn clearly failed to
exercise reasonable diligence in uncovering the fact that no
notice of appeal had been filed and then bringing this mistake
to the attention of the opposing party and the District Court.
This Court previously rejected the ―contention that Rule
4(a)(5) provides an absolute 30 day grace period‖ and held
that ―‗excusable neglect‘ must be shown up to the actual time
the motion to extend is filed.‖ Id. at 51. ―It simply is not
overly burdensome to require a putative appellant, who has
already missed the 30 day . . . mandatory appeal date of Rule
4(a)(1) because of ‗excusable neglect,‘ to file immediately a
Rule 4(a)(5) motion to extend when the excuse no longer
exists.‖ Id. at 52. In this case, a reasonably diligent attorney
certainly could have—and should have—discovered the fact
that no notice of appeal had been filed (or at least taken steps
to investigate the matter) when: (1) Premier filed its original
fee motion on January 13, 2010; (2) Ragguette‘s opposition to
this fee motion was filed (via the ECF system under Rohn‘s
own account) on January 28, 2010; (3) the District Court
entered an order on February 8, 2010 scheduling a hearing on
the fee motion for February 23, 2010; (4) on February 24,
2010, the District Court rescheduled the fee hearing for
March 1, 2010; (5) no ECF notice was ever received
indicating the filing of a notice of appeal; (6) no ECF notices
were ever received with respect to a number of documents
sent out by the District Court‘s Clerk (a receipt for payment
35
of the requisite filing fee for an appeal) as well as the Third
Circuit‘s Clerk (the initial case opening letter and the
assignment of the case caption) immediately after the filing of
a notice of appeal; and (7) similarly, no ECF notices (or hard
copies of the documents themselves) were ever received
indicating that the parties filed various documents due shortly
after the commencement of an appeal (i.e., entry of
appearance, disclosure statement, civil appeal information
statement, concise summary of the case, and transcript
purchase order).4 Yet Rohn purportedly did not discover that
4
In passing, Ragguette contends that there was no
evidence in the record to support Premier‘s representations
that Rohn should have received ECF notices for various
filings and that, in fact, the record actually established the
contrary. We, however, must reject his assertions given the
well-established nature of the procedures at issue here. For
instance, we observe that the docket sheet for Ragguette‘s
successful appeal from the District Court‘s initial denial of his
Rule 4(a)(5) motion indicated that the following documents
were filed (and served) shortly after the May 20, 2010 filing
of his notice of appeal via Rohn‘s ECF account: (1) on May
21, 2010, the receipt for payment of the appellate filing fee;
(2) on May 26, 2010, the initial case opening letter, the
assignment of the case caption, and an order advising the
parties of the Court‘s practice of holding Virgin Islands
sittings twice a year as well as tentatively listing this case for
May 2011; (3) on May 28, 2010, an entry of appearance from
Premier‘s counsel and Premier‘s disclosure statement; (4) on
June 11, 2010, a follow-up letter from the Third Circuit
Clerk‘s Office to Rohn requesting the submission of an entry
36
no notice of appeal had been filed until her preparation for the
March 1, 2010 fee hearing—approximately a month after the
deadline for filing a notice of appeal and approximately two
months after the District Court‘s summary judgment order.
Nevertheless, she still did not even mention the mistake or the
possibility of an appeal at the hearing conducted on March 1,
2010. Even though she claimed that that she did do so
because she wanted to obtain verification, we must reject
such an excuse given her prior—and extensive—lack of due
diligence. We also note that a reasonably competent
attorney—having just discovered that a notice of appeal had
not been filed almost a month after the deadline had already
expired and immediately before a previously scheduled
hearing—would have exercised more diligence in obtaining
verification prior to the hearing and would have then brought
this critical matter to the immediate attention of opposing
counsel and the judge.
We thereby determine that the District Court erred in
its assessment of the ―reason for the delay‖ factor. Contrary
of appearance form, a civil case information statement, a
concise summary of the case, and a transcript purchase order
on or before June 25, 2010; and (5) on June 25, 2010, an
entry of appearance from Rohn as well as a civil case
information statement, concise summary of the case,
disclosure statement, and transcript purchase order. Again,
we emphasize that the fact that the ECF filings purportedly
went to Rohn‘s new motions attorney—and were not
otherwise received or monitored by Rohn herself—weighs
against any finding of excusable neglect.
37
to the District Court‘s characterization, this factor strongly
weighs against any finding of excusable neglect. We,
however, must still address the District Court‘s assessment of
the remaining Pioneer factors. ―Under Pioneer, a court must
take into account all relevant circumstances surrounding a
party‘s failure to file, and failing to disprove ‗reasonable
control‘ is not necessarily fatal to a petitioner‘s request for
relief. To state it differently, the ‗control‘ factor does not
necessarily trump all the other relevant factors.‖ George
Harms Constr. Co. v. Chao, 371 F.3d 156, 164 (3d Cir. 2004).
Therefore, while prejudice to the opposing party, disruption
of efficient judicial administration, and bad faith are
frequently absent, the mere fact that ―those factors may nearly
always favor‖ the moving party does not mean that they can
be ignored. Id.
We nevertheless must conclude that the other Pioneer
factors, at best, provide only minimal support for the District
Court‘s ―excusable neglect‖ finding. Accordingly, they are
clearly insufficient to outweigh the ―reason for the delay‖
factor.
It is well established that, as Ragguette points out, ―a
finding of prejudice should be a conclusion based on facts in
evidence.‖ In re O‘Brien Envt‘l Energy, Inc., 188 F.3d 116,
127 (3d Cir. 1999). In other words, prejudice does not consist
of ―an imagined or hypothetical harm,‖ and, on the contrary,
prejudice generally occurs where, for instance, the opposing
party has lost evidence or placed substantial reliance on the
judgment or there is an increased potential for fraud or
collusion. Id. The District Court appropriately noted that
38
Premier would have faced the prospect of a trial even if its
opponent had filed a notice of appeal within the applicable
30-day period. ―Nor is there evidence that defendant has
incurred any significant costs since the entry of judgment, or
that it will incur significant costs connected to this motion.‖
Ragguette, 2011 WL 2359920, at *1. The District Court,
at the very least, ultimately accorded too much weight to this
particular factor in the current circumstances. In particular,
Premier points out that it was certain there would be no
appeal once the 30-day period to file a notice of appeal had
expired and no notice of appeal (or Rule 4(a)(5) motion) had
been either filed or served within this 30-day period. Viewed
in isolation, this contention overlooks a number of well-
established mechanisms available to pursue an appeal even in
absence of an otherwise timely notice of appeal, including
Rule 4(a)(5) itself. We, however, are not confronted here
with the more typical situation of an appellant who, while still
managing to serve the notice of appeal on the opposing party
in a timely fashion, failed to file a notice of appeal with the
district court within the generally applicable 30-day period
due to some sort of unfortunate oversight. As we have
already discussed in some detail, Rohn never indicated to
opposing counsel or the District Court the possibility of an
appeal until the Rule 4(a)(5) motion was filed on March 5,
2010. In fact, a fee hearing was actually held before the
District Court only days before the expiration of the 60-day
period established by Rule 4(a)(5), and, yet again, not a word
was said about any possible appeal. Given these
circumstances, Premier could have been led to believe that its
adversary did not intend to appeal from the District Court‘s
order granting its summary judgment motion and that the only
39
remaining issue in the litigation was the subsidiary question
of fees and costs.
We reach the same basic conclusion with respect to the
―length of the delay and its potential impact on the judicial
proceedings‖ factor. The length of the delay must be
examined in ―absolute terms‖ or in an ―absolute sense,‖
meaning that the extent of the delay should be considered in
isolation. O‘Brien, 188 F.3d at 129-30; see also, e.g.,
Orthopedic Bone Screw, 246 F.3d at 325. The District Court
reasonably observed that ―[t]he delay, measured at the time
Ragguette filed his motion, was twenty-nine days, but within
the time for filing the Rule 4 motion.‖ Ragguette, 2011 WL
2359920, at *1. While it appropriately found that such a
delay ―was not inordinate,‖ id., this finding must still be
weighed against the other Pioneer factors. We also cannot
overlook the fact that Ragguette filed his motion on Friday,
March 5, 2010—the 59th day of the 60-day period. He only
had one more business day—Monday, March 8, 2010—left to
seek relief under Rule 4(a)(5). In other words, this is not a
case where a party filed the Rule 4(a)(5) motion within the
original 30-day period for filing a notice of appeal or even
just a few days after this initial period had expired.
Finally, we agree with the District Court that neither
Ragguette nor Rohn appeared to act in bad faith, at least in
the specific sense of engaging in outright misconduct or
inequitable behavior. Nevertheless, we still cannot overlook
the manifest lack of diligence on the part of Ragguette‘s
attorney and, in particular, the multiple opportunities she had
to discover the failure to file a notice of appeal and then to
40
attempt to remedy such a clear and serious mistake. Most
significantly, even though Rohn finally discovered what
happened when preparing for the March 1, 2010 fee hearing,
she did not even mention this discovery or a possible appeal
at the hearing itself. While her intent to obtain verification
was perhaps understandable, such a justification does not
really carry much weight here, especially given the clear
deficiencies with respect to how Rohn and her firm handled
the filing of a notice of appeal, her lack of due diligence, and
her status as an experienced litigator. Even if there was ―no
reason to believe that [Rohn] ever acted in bad faith,‖ we
cannot conclude that she was ―so careful or vigilant as to
overcome the weight‖ of the ―reason for the delay‖ factor. In
re Am. Classic Voyages Co., 405 F.3d 127, 134 (3d Cir.
2005) (determining that bankruptcy court did not abuse
discretion by finding that failure to file claim by bar date did
not qualify as excusable neglect and also specifically stating
that party‘s care and vigilance were not sufficient to
overcome weight of other factors—especially ―second‖
factor).
In the end, we must conclude that the District Court
abused its discretion. While we acknowledge the deferential
nature of our review, it is clear that the ―reason for the delay‖
factor strongly weighs against any finding of excusable
neglect. It is also clear that the remaining factors, at best,
provide only minimal support for such a finding and thereby
cannot overcome the weight of the ―reason for the delay‖
41
factor.5 In other words, the Court is confronted in this case
with more than the simple and understandable ―failure to
proofread a caption‖ at issue in Consolidated. 827 F.2d at
921. In fact, counsel—unlike her counterpart in
Consolidated—never even managed to draft a notice of
appeal within the applicable 30-day period, and, accordingly,
there was no ―timely service of the Notice of Appeal upon
opposing counsel.‖ Id. at 920. We likewise are not dealing
here with anything comparable to Pioneer‘s ―unusual form of
notice.‖ Pioneer, 507 U.S. at 399.
More broadly, we note that a ruling in favor of
Ragguette in the current circumstances could be read as
condoning and even rewarding otherwise avoidable
mistakes—and even outright incompetence—on the part of
even experienced attorneys. Far from deterring such
mistakes, such a signal could lead to yet more claims of
excusable neglect premised on attorney incompetence in
connection with the critical—yet relatively simple—step of
filing a notice of appeal within the applicable time period for
doing so.
IV.
5
Given this assessment of the Pioneer factors, we need
not—and do not—decide whether a prior panel of our Court
was correct to suggest in dicta that the ―danger of prejudice‖
factor constitutes ―the most important [factor] of all.‖ Diet
Drugs, 401 F.3d at 154.
42
For the foregoing reasons, we determine that the
District Court improvidently granted Ragguette‘s motion for
an extension of time to file a notice of appeal under Federal
Rule of Appellate Procedure 4(a)(5). We accordingly will
dismiss Ragguette‘s appeal for lack of appellate jurisdiction.
43