MIDWEST EMPLOYERS CASUALTY CO., Plaintiff-Appellant-Appellee, v. Jo Ann WILLIAMS, Defendant-Appellee-Appellant , 161 F.3d 877 ( 1998 )

BENAVIDES, Circuit Judge:

Midwest Employers Casualty Co. (“Midwest”) appeals the district court’s supplemental memorandum ruling ordering it to pay workers’ compensation benefits and medical expenses to Willie Williams. We dismiss the appeal for lack of jurisdiction.

The magistrate² set forth the supplemental memorandum ruling on October 15, 1997. On November 3,³ Midwest filed a motion for a new trial. Williams opposed that motion, stating that under Federal Rule of Civil Procedure 59, Midwest had only ten days following the supplemental memorandum ruling in which to file its motion. While Midwest’s motion for a new trial was pending, Midwest’s time for filing a notice of appeal expired. On November 26, the magistrate denied Midwest’s motion for a new trial as untimely. On December 9, Midwest filed a motion to extend the time for filing an appeal,⁴ which Williams opposed. On December 11, the magistrate extended Midwest’s time to appeal until December 21. Under Federal Rule of Appellate Procedure 4(a)(5), the district court may extend the time for filing a notice of appeal if the party seeking to appeal demonstrates “excusable neglect” or “good cause” for its earlier failure to file. The magistrate found that Midwest’s counsel had misread Federal Rule of Civil Procedure 6(e)⁵ to apply to judgments served by mail and mistakenly believed he had three extra days to file the motion for a new trial. According to the magistrate, the misreading of Rule 6(e) constituted “excusable neglect” for purposes of Rule 4(a)(5). The magistrate therefore extended Midwest’s time to file an appeal because that time had lapsed while Midwest waited for a ruling on a post-judgment motion that it believed was timely filed. Williams appeals the magistrate’s decision to extend Midwest’s time to appeal, contending that the magistrate abused his discretion and this Court is without jurisdiction to hear Midwest’s appeal.

We review the magistrate’s decision for abuse of discretion, see Latham v. Wells Fargo Bank, 987 F.2d 1199 (5th Cir.1993), and we agree that the magistrate did abuse his discretion in granting Midwest additional time to file its appeal.

This Court’s recent opinion in Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465 (5th Cir.1998) informs our decision. In Hal-icki, an employment discrimination case, the district comb granted summary judgment for the defendants, after which the plaintiff, Hal-icki, had 30 days to file a notice of appeal. Mistakenly believing that he had extra time under Rule 6(e) because the judgment was served by mail, Halieki’s counsel filed a Rule 59(e) motion two days late. A timely Rule 59(e) motion would have suspended the 30-day period for filing an appeal. Instead, the time for filing notice of appeal lapsed while Halieki’s counsel waited for a ruling on the Rule 59(e) motion. The district court refused to extend Halieki’s time to appeal, holding that misreading Rule 6(e) to apply to judgments served by mail did not constitute excusable neglect under Appellate Rule 4(a)(5). This Court affirmed:

Apparently unaware that the plain language of the rules, well-settled hornbook law, and every other circuit to address the issue had rejected the applicability of rule 6(e) to Rule 59(e), [Halieki’s] attorney waited until the tenth day to mail the rule 59(e) motion, causing it to arrive at the district court two days late.

.... The nature of Halieki’s mistake weighs heavily against a finding of excusable neglect.

Although in Clark we left open the possibility that some misinterpretations of the federal rules may qualify as excusable neglect, such is the rare ease 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.”

Halicki, 151 F.3d at 467-70 (quoting Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir.1997)).

One significant fact separates Halicki from the instant ease. In Halicki, we reviewed a district court’s decision not to grant additional time to file the notice of appeal; here, we review the magistrate’s decision to grant the additional time. Courts of appeal often give more leeway to a district court’s decision to grant an extension than they give to a district court’s refusal to do so. See Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 3950.3 (2d ed.1996). Such additional leeway notwithstanding, however, the magistrate’s decision here cannot survive. We remain mindful of the “excusable neglect” standard set forth by Pioneer Investment Services Co. v. Brunsunck Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993):

[T]he determination is at bottom an equitable one, taking account all of the relevant circumstances surrounding the party’s omission. These include ... the danger of prejudice ..., 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, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (quoted in Halicki, 151 F.3d at 468).⁶ Other than stating that Williams would not suffer undue prejudice, the magistrate relied solely on “the different application of the 3-day extension rule” being a “trap for the unwary” when he found excusable neglect. As Halicki states, the nature of this very mistake “weighs heavily against a finding of excusable neglect.” We therefore find that the magistrate judge abused his discretion in granting Midwest additional time to file notice of an appeal. Accord Prizevoits v. Indiana Bell Telephone Co., 76 F.3d 132 (7th Cir.1996) (overturning a grant of additional time to file notice of appeal where the plaintiffs attorney misapplied Federal Rule of Civil Procedure 6(b)); Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir.1994) (reversing an order granting an enlargement of time under Rule 6(b) to file a motion for attorney’s fees because an attorney’s mistake about Rule 6(e) did not amount to excusable neglect). We continue to leave open the possibility that some misinterpretations of the federal rules could constitute excusable neglect, but we hold, as in the Halicki opinion, that this is no such “rare case indeed.”

The dissent argues that United States v. Evbuomwan, 1994 WL 523681 (5th Cir.1994) (unpublished opinion) (reported at 36 F.3d 89 (table case)), and Lackey v. Atlantic Richfield Co., 990 F.2d 202 (5th Cir.1993), compel another result in this case. We find those cases inapposite. In Evboumwan, a criminal case, counsel misunderstood Federal Rule of Appellate Procedure 26(c), which extends by three days the time to respond to papers served by mail, to apply to notices of appeal. We noted that, under some circumstances and particularly in criminal cases, Rule 4(b)’s excusable-neglect provision could cover ignorance or neglect of counsel in filing late notices of appeal. See Evbuomwan at 2 (citing United States v. Lewis, 522 F.2d 1367, 1369 (5th Cir.1975)). In the instant case, unlike in Evbuomwan, counsel did not misinterpret a rule governing the time to appeal. Instead, counsel allowed the appeal deadline to pass while he waited for a ruling on the motion for a new trial, even while Williams’s opposition to the motion had already indicated that the motion may have been untimely. We cannot equate this with the good-faith misinterpretation of an appeal deadline that led to an equitable decision for the Evbuom-wan criminal defendant. In Lackey, the district court extended time for filing an amended notice of appeal where the plaintiffs had used “et al.” instead of listing all parties. The district court found that the original timely filed notice of appeal, although insufficient to invoke appellate jurisdiction, sufficed to put the parties on notice within the prescribed period. See Lackey, 990 F.2d at 206. In the instant case, Williams and Midwest both watched the deadline pass without a notice of appeal, and Williams had no reason to think that an appeal would come later. We find Halicki, which mirrored the facts of the instant case, more persuasive than either Lackey or Evbuomwan.

Midwest’s notice of appeal was not timely filed, and there was no excusable neglect. This Court will not assume jurisdiction, and the appeal is DISMISSED.

2 . By consent of the parties and a referral from the district court, the case was decided by Magistrate Judge John Simon.

3 . All dates are 1997.

4 . Under Federal Rule of Appellate Procedure 4(a)(4), the timely filing of a Rule 59 motion for a new trial extends the time available for filing a notice of appeal. An untimely post-judgment motion, however, does not affect tine time for filing an appeal. See Knapp v. Dow Corning Corp., 941 F.2d 1336, 1338 (5th Cir.1991).

5 .Federal Rule of Civil Procedure 6(e) states: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period."

6 . Pioneer Investment discussed the meaning of "excusable neglect” under Bankruptcy Rule 9006(b)(1). Relying on the consistent use of "excusable neglect” in federal rules, this Court in United States v. Clark, 51 F.3d 42 (5th Cir.1995), applied the Pioneer Investment discussion to Appellate Rule 4(a)(5) in criminal cases. See id. at 44. In Halicki, we extended Pioneer Investment under the Clark rationale to civil cases. See Halicki, 151 F.3d at 468.