Cowart v. Ingalls Shipbuilding ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60034
Summary Calendar
BARBARA COWART; A J DURBANO,
Plaintiffs-Appellants,
versus
INGALLS SHIPBUILDING
Defendant-Appellee
Appeal from the United States District Court
For the Southern District of Mississippi
No. 1:97-CV-371-GR
August 4, 1999
Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.
PER CURIAM:*
The notice of appeal in this case was filed on October 15,
1998, thirty-one days after the entry of final judgment by the
district court. The rule allows only thirty days. See Fed. R.
App. P. 4(a)(1). On October 16, the plaintiffs filed a motion for
leave to file the appeal out of time. They explained that a
paralegal was to have filed the notice of appeal three days before
*
Local rule 47.5 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
the deadline, but failed to do so when her son was involved in a
serious automobile accident. They also assert that one of the two
attorneys on the case ordinarily would have followed up to make
sure the document was properly filed, but did not do so because he
was busy with two other federal cases at the time.
The district court denied the motion to file out of time, and
this alone is before us now. “The district court, upon a showing of
excusable neglect or good cause, may extend the time for filing a
notice of appeal upon motion filed not later than 30 days after the
expiration of the time prescribed by this Rule 4(a).” Fed. R. App.
P. 4(a)(5). We have held that appellants are entitled to make a
“good cause” showing only if a motion for extension of time is
filed before the initial thirty-day appeal period expires. See
Allied Steel, Gen. Contractor v. City of Abilene, 909 F.2d 139, 143
n.3 (5th Cir. 1990), disapproved by on other grounds, United States
v. Clark, 51 F.3d 42, 44 (5th Cir. 1995). Thus, only “excusable
neglect” is at issue here.
The Supreme Court offered a helpful explication of “excusable
neglect” in Pioneer Investment Services Co. v. Brunswick Associates
Limited Partnership, 507 U.S. 380 (1993). Although that case
involved Bankruptcy Rule 9006(b)(1), the Court drew on a number of
legal provisions containing the “excusable neglect” standard. See
id. at 392-94. We have responded by importing Pioneer’s analysis
of “excusable neglect” into non-bankruptcy contexts, including Rule
4(a). See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465,
468 (5th Cir. 1998); see also Clark, 51 F.3d at 44 (Rule 4(b)).
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Pioneer held that “‘excusable neglect’ is understood to
encompass situations in which the failure to comply with a filing
deadline is attributable to negligence.” 507 U.S. at 394. The
Court recognized “a range of possible explanations for a party’s
failure to comply with a court-ordered filing deadline.” Id. at
387. “At one end of the spectrum, a party may be prevented from
complying by forces beyond its control, such as by an act of God or
unforseeable human intervention. At the other, a party simply may
choose to flout a deadline.” Id. at 387-88. The ultimate question
is an equitable one, taking into account “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 394.
The district court did not directly address the first two of
these factors concerning the effect of the late filing, even though
the Supreme Court apparently rejected the dissenters’ position that
only the cause of the delay should matter. See id. at 403(O’Connor, J., dissenting). Filing the notice of appeal was within
the reasonable control of the movant, the district court found,
because the attorneys could have filed it themselves. The cause of
the paralegal’s failure to file was thus thought irrelevant.
If the district court’s ruling were to stand, attorneys would
risk procedural default by delegating the task of filing pleadings
to even the most reliable subordinates. On the district court’s
reasoning, an attorney’s theoretical ability to file a pleading
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personally weighs so heavily in the equitable calculus that even if
there is no prejudice from a late filing, the failure to file on
time is necessarily inexcusable. We cannot turn a blind eye to the
reality that legal pleadings are routinely filed by nonlawyers and
that this division of labor makes economic sense. Privileging a
lawyer’s family emergency over a paralegal’s would turn attorneys
into highly paid messengers.
The district court’s ruling on this matter can be upset only
for abuse of discretion. See Halicki, 151 F.3d at 470. If real
prejudice occurred as a result of the late filing, we would not
overturn a district court’s determination that this outweighed an
attorney’s good faith in believing that a pleading was properly
filed. Here, though, there was but a one-day delay, and no
prejudice has been alleged. That the appellants’ lawyers in theory
could have filed the pleading themselves or personally verified
that it had been properly filed does not tip the balance enough, if
it tips the balance at all, to compensate for this lack of
prejudice. Even is such conduct is negligent, it is excusable
given the financial and organizational structure of modern law
firms.
We REVERSE the district court and ORDER that briefs on the
merits be filed according to the usual procedures.
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