Wilma Williams v. Kfc National Management Company ( 2004 )

Judge CALABRESI concurs by separate opinion.

B.D. PARKER, JR., Circuit Judge:

Plaintiff-appellant Wilma Williams appeals from a judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) in favor of KFC National Management Company (“KFC” and formerly known as “Kentucky Fried Chicken”) dismissing her personal injury claim. The District Court concluded that Williams failed to raise a material issue of fact as to KFC’s responsibility for a sidewalk condition that allegedly caused her to fall and suffer injuries. After Williams’s time to appeal expired, she moved for an extension, which was unopposed. The District Court granted the extension. After the appeal was fully briefed in this Court, KFC moved to dismiss it as untimely, contending that the extension was an abuse of discretion. For the reasons that follow, we conclude that in the absence of an objection to the motion for extension of time, we cannot say that the District Court abused its discretion in granting the extension. Accordingly, KFC’s motion to dismiss must be denied. Because we also conclude that Williams raised genuine issues of material fact, we vacate the summary judgment and remand for further proceedings.

I. BACKGROUND

The facts considered in the light most favorable to Williams indicate that on September 19, 2000, she was walking down Lafayette Avenue towards Bedford Avenue in Brooklyn, N.Y. The evening was dark, it was raining heavily, and she fell on a section of sidewalk abutting a locked gate that separates the sidewalk from a dumpster storage area located behind a KFC restaurant. According to the assistant manager of the restaurant, about twice a day KFC employees place trash bags filled with refuse such as food containers, food preparation materials, and uneaten food into the dumpster. Overnight, the gate to the dumpster area is left unlocked so that the dumpsters can be removed by refuse carters who drag them through the unlocked gate and across the sidewalk to be emptied into garbage trucks. In the morning, KFC employees drag the dumpsters back over the sidewalk to the storage area.

Williams claims that, after her fall, she discovered grease on her clothes and shoes, and that a police officer who responded to the accident told her she had slipped on grease on the sidewalk. A private investigator retained by Williams returned to the scene two days later, noted that the area was slippery, and took photographs showing discoloration on the stretch of sidewalk where the fall occurred. In addition, the assistant manager testified that on the date in question, the area where the dumpster was located was dirty, and that the garbage bags broke on occasion.

Williams sued KFC in New York state court, and KFC removed to federal court. In her complaint, Williams alleged that twice a day KFC rolled its dumpster across the stretch of sidewalk where she fell, that grease leaked out of the garbage bags and the dumpster, causing slippery conditions.- on the. sidewalk, and that these slippery conditions caused her fall and her injuries. Her alternate theory of liability was that since KFC made “special use” of the sidewalk, under New York law it had actual or constructive knowledge of, and responsibility for, the dangerous condition, even if she had.not proved that KFC affirmatively caused it.

After discovery, KFC moved for summary judgment, which the District Court granted. The Court concluded that, although Williams had raised a genuine issue of material fact as to the existence of grease on the sidewalk, she had raised none as to KFC’s responsibility for the grease, finding Williams contentions in this regard too speculative. The Court also concluded that Williams had failed to establish that.KFC was liable as a consequence of any “special use” of the sidewalk.

Judgment was entered on January 31, 2003, but Williams failed to appeal within the 30 days allowed by the Federal Rules of Appellate Procedure. See Fed. R.App. P. 4(a)(1)(A). Rather, on March 26, she moved for an extension of time to file the appeal. See Fed. RApp. P. 4(a)(5). KFC received the motion on March 27 but failed to oppose it. The District Court granted the motion and Williams filed her notice of appeal on March 31. Months later, on November 19, after appellate briefing had been completed, KFC moved to dismiss the appeal for lack of jurisdiction because of Williams’s late filing. We reserved decision. We now deny KFC’s motion to dismiss and, reaching the merits, conclude that Williams raised a genuine issue of material fact as to KFC’s responsibility for the accident. We therefore vacate the judgment and remand for further proceedings.

II. DISCUSSION

A. Appellate Jurisdiction

Under Rule 4(a), a notice of appeal in a civil case must be filed within 30 days after entry of judgement. Fed. R.App. P. 4(a)(1)(A). The district court may extend that time period if (i) a party moves for the extension no later than 30 days after the time prescribed by Rule 4(a) expires and (ii) the moving party establishes excusable neglect or good cause. Fed. R.App. P. 4(a)(5).

Compliance with Rule 4(a) is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir.2003). This Court has previously explained that “[t]he power of the federal courts to extend this time limitation is severely circumscribed.” Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir.1997). We review for abuse of discretion a district court’s decision to grant or deny an extension of time to file a notice of appeal, but if an appeal is filed outside the time limitations provided in Rule 4(a)(5), we lack jurisdiction. Goode v. Winkler, 252 F.3d 242, 245 (2d Cir.2001).

Williams’s motion sought to establish “excusable neglect” solely on the ground that “plaintiffs counsel inadvertently closed plaintiffs case after ... the Court had dismissed her case and the plaintiff failed to instruct [her counsel] to file a Notice of Appeal” and that “plaintiff, recently, on March 21, 2003, contacted [her counsel] and indicated that she wanted [counsel] to file a Notice of Appeal herein.” Appellant Mot. for Ext. of Time. The motion further contended that Williams had “good cause for the instant appeal” because the evidence demonstrated that “there is a material question of fact concerning the creation of the defect on the defendant’s premises that caused plaintiff to fall and sustain injuries.” Id. This latter contention was, of course, irrelevant since the appropriate inquiry is not whether the underlying claim has merit, but whether excusable neglect or good cause exists for the failure to file the notice of appeal in a timely manner. As previously noted, none of Williams’s excuses were contested and her motion, without opposition, was granted.

The Supreme Court, in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), adopted a liberal test for assessing what neglect is excusable, emphasizing that “the determination is at bottom an equitable one, taking account of all relevant circumstances,” including: (1) the danger of prejudice to the non-moving party, (2) the length of delay and impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the moving party, and (4) whether the moving party acted in good faith. Id. at 395, 113 S.Ct. 1489. To be sure, the District Court could readily have concluded that Williams met three aspects of this four-factor test. In the absence of any objection on KFC’s part, there is nothing to suggest prejudice to the defendant due to the three-week delay. Further, the District Court was, of course, competent to conclude that the delay did not affect judicial proceedings. Finally, a finding of good faith on Williams’s part was warranted given the District Court’s familiarity with the case and the lack of any evidence to the contrary adduced by KFC. We have emphasized, however, that it is the third factor-the reason for the delay-that predominates, and the other three are significant only in close cases. But we have emphasized this factor solely in cases where the non-moving party made an objection to the validity of the explanation given for the delay. Silivanch, 333 F.3d at 366.

Thus, in Silivanch, we held that it was an abuse of discretion for the lower court to have found reliance on an opposing counsel’s erroneous statement about a filing deadline to be “excusable neglect.” Id. at 370. We expressed concern that “the legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced” and, in that case, where vigorous opposition to the explanations for the neglect was presented, we reaffirmed that the “ ‘excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules.’ ” Id. at 368-69 (quoting Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir.1994), and United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994)) (eases in which forfeiture and failure to object were not at issue). KFC argues that our case law compels the conclusion that the District Court’s extension was an abuse of discretion because Williams’s only reason for her lateness does not meet the standards of Silivanch.

While on the record before us we cannot say that the reason for delay would fall under Silivanch’s definition of excusable neglect, we note a critical difference: in Silivanch the motion for an extension of time — specifically the adequacy of the third Pioneer factor — was vigorously challenged through the filing of opposition papers and participation in oral argument. Silivanch, 333 F.3d at 362. Here, KFC did nothing. It did not respond to Williams’s motion, it did not request oral argument, and it said nothing after the District Court granted the extension. KFC’s objection came months later, - after the notice of appeal was filed and after the appeal had already been briefed to this Court. As set forth below, we hold that the failure to oppose, in circumstances where the other three Pioneer factors could readily be found to have been met, created a context in which the District Court’s discretion to grant the motion without further examination was not an abuse of discretion.¹

To promote finality and efficiency in appellate proceedings, “[w]e operate in an environment ... in which substantial rights may be, and often are, forfeited if they are not asserted within time limits established by law.” Silivanch, 333 F.3d at 367. In Silivanch, that reasoning meant that a party that failed to appeal on time and whose claim of excusable neglect was traversed and, as a matter of law, deemed inadequate with respect to the third Pioneer factor lost the right to appeal. We further held that in such circumstances the meeting of the other Pioneer factors did not suffice to place an extension decision within the district court’s discretion. While we adhere to the logic of Silivanch, we find that it leads to the opposite conclusion in the absence of any questioning in the district court of the movant’s claim that she has met the third Pioneer factor. We reach this conclusion at least where the other three Pioneer factors can easily be found to run in the movant’s favor.

Rule 4(a) requires that requests for extensions be made in the district court. Fed. R.App. P. 4(a). This requirement insures that the court most familiar with the litigation, and in the best position to assess the merits of a request, rule in the first instance. The lack of an objection in the district court to an extension request deprives the district court of the basis for a focused exploration of the sufficiency of the request, and limits the ability of courts of appeals to determine whether granting one was an appropriate exercise of discretion by the district court. See Fed. R.App. P. 4(a)(5)(B) (requiring notice to the other party if the motion for extension is filed after the prescribed time for appeal, allowing an opportunity for opposition). Since this determination would be made with no answering or reply papers and without the benefit of the views of the district court developed in a contested proceeding, it would be, in all likelihood, a less informed decision, one that unnecessarily enhances the risk of an incorrect result. But the alternative, to send the matter back to the district court for further findings, would give rise to precisely the sort of delay and uncertainty (as a result of appellee’s failure to act in a timely fashion) that Rule 4(a) was designed to avoid.

More fundamentally, allowing appellees belatedly to question the District Court’s extension as an abuse of discretion at any time (since the objection goes to jurisdiction) invites manipulation. It allows the appellee to “wait and see,” and raise the jurisdictional issue — -which is one the appellate court can often discern on its own only with difficulty — only if the oral argument or perhaps even the appellate decision has “gone against” them. Such an incentive is to be avoided if at all possible.

On the facts before us, avoiding such an undesirable result is readily possible. The standard for reviewing the grant of a motion to extend is abuse of discretion. Three of the four Pioneer factors, on then-face, support the court’s ruling in favor of that extension. The “reason for ’delay” factor, concededly the most important, does not support an extension, but its adequacy was not challenged before the District Court. Where the validity of the this factor goes unchallenged, and the other factors favor extension, we cannot say that the District Court abused its discretion by granting the extension or in deciding not to, sua sponte, examine the facts in more depth.

B. Summary Judgment

We review a summary judgment de novo. Hellstrom v. United States Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000). The District Court granted KFC summary' judgment on the theory that while Williams raised a genuine issue of material fact as to the existence of a hazardous condition on the sidewalk, she failed to raise one as to KFC’s responsibility for the condition. On appeal, Williams contends that she raised these issues of fact in two ways: (1) with respect to whether KFC created, and consequently was responsible for, the hazardous conditions that caused her injuries, and (2) whether, under New York law, KFC made “special use” of the sidewalk and therefore could be charged with constructive knowledge of, and responsibility for, the hazardous condition.

With respect to “special use,” it is unclear that this argument was raised below. The District Court noted that “[pjlaintiffs do not allege or argue that KFC made any special use of the sidewalk” but, in any case, “there is no evidence that KFC owns, occupies, controls, or makes special use of the sidewalk.” On appeal, Williams contends that the special use argument was raised below when she averred that the condition creating the cause of the fall was the movement of the dumpster across the sidewalk, and that KFC had actual or constructive knowledge of this condition.

While it is true that if the question of “special use” had not been raised before the District Court, it would have been waived here, United States v. Keppler, 2 F.3d 21, 23 (2d Cir.1993), we need not definitively resolve this question since it is as clear to us as it was to the court below that the “special use” doctrine has no place in this case. Accordingly, we can proceed on the assumption that the District Court granted summary judgment with respect to the special use question as well as to the affirmatively-eaused-defect theory. Fama v. Comm’r of Correctional Servs., 235 F.3d 804, 816 n. 11 (2d Cir.2000) (noting that courts may assume hypothetical jurisdiction where a jurisdictional requirement is not constitutional).

1. Special Use

Under New York law, it is well established that liability for injuries resulting from negligently maintained public sidewalks lies, if at all, with the municipality, not the adjacent landowner. Hausser v. Giunta, 88 N.Y.2d 449, 452-53, 646 N.Y.S.2d 490, 669 N.E.2d 470 (1996). However, exceptions exist, and an abutting owner will be presumed to have constructive knowledge of dangerous conditions and may be liable for resulting injuries: (1) where the sidewalk was constructed in a special manner for his benefit, in other words, where he makes “special use” of the sidewalk, (2) where he affirmatively caused the defect, (3) where he negligently constructed or repaired the sidewalk, and (4) where a local ordinance specifically requires the landowner to maintain the sidewalk and imposes liability for failure to do so. Hausser, 88 N.Y.2d at 453, 646 N.Y.S.2d 490, 669 N.E.2d 470. On appeal, Williams contends that KFC made “special use” of the sidewalk by dragging the dumpster over the sidewalk and that this use was sufficient to impose a duty of care on KFC that it breached.

We find this argument unconvincing. In New York, the “special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use, and is therefore required to maintain a portion of that property.” Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318 (1995). When considering the doctrine, New York courts have consistently required that “[bjefore liability can be imposed, the sidewalk must be constructed in a special manner” for the benefit of the abutting landowner. Kieman v. Thompson, 137 A.D.2d 957, 958, 525 N.Y.S.2d 380 (N.Y.App. Div., 3d Dep’t 1988) (gathering cases). Cases applying the doctrine have typically involved the installation of some object in the sidewalk or a variance in the construction of the sidewalk intended specifically to benefit the adjacent owner. See, e.g., Granville v. City of New York, 211 A.D.2d 195, 627 N.Y.S.2d 4 (N.Y.App. Div., 1st Dep’t 1995) (involving a concrete step mounted on the sidewalk beneath the elevated doorway of a restaurant); Santorelli v. City of New York, 77 A.D.2d 825, 430 N.Y.S.2d 618 (N.Y.App. Div., 1st Dep’t 1980) (involving a heating oil filler cap in the sidewalk); Nickelsburg v. City of New York, 263 A.D. 625, 34 N.Y.S.2d 1 (N.Y.App. Div., 1st Dep’t 1942) (involving iron bars that were embedded in the sidewalk to facilitate removal of refuse). Here, Williams does not allege that any special features on the sidewalk were constructed for KFC’s benefit.

Significantly, New York courts have repeatedly refused to find a special use even when abutting landowners have made considerably more intrusive use of the sidewalk than did KFC. See, e.g., Thomas v. Triangle Realty Co., 255 A.D.2d 153, 679 N.Y.S.2d 394 (N.Y.App. Div., 1st Dep’t 1998) (finding that maintenance of an ATM machine adjacent to sidewalk was not a special use); Tortora v. Pearl Foods, Inc., 200 A.D.2d 471, 606 N.Y.S.2d 235 (N.Y.App. Div. 1st Dep’t 1994) (finding that a business whose customers formed a line on the sidewalk was not making a special use of the public property). In contrast, KFC’s use of the. sidewalk to move a dumpster was not special; it was an entirely routine use, indistinguishable from the myriad ways in which public sidewalks are used every day. Consequently, the special use doctrine does not apply.

2. Affirmative Causation

Alternatively, Williams claims that KFC is liable because it affirmatively caused the dangerous condition. The District Court found — crediting Williams’s testimony as to the grease she found on her clothes, the statements of the responding police officer, and the testimony of the private investigator — that Williams had presented sufficient evidence to raise a genuine issue of material fact as to the existence of the hazard. The District Court went on, however, to conclude that finding KFC responsible for the condition required an accumulation of speculative inferences: (1) that the garbage bags placed inside the dumpster had leaked, (2) that the dumpster itself had leaked, (3) that the dumpster had leaked while it was being moved across the sidewalk, and (4) that leaks during this movement left a. greasy residue on the sidewalk. Finding these inferences too attenuated, the District Court concluded that Williams had failed to raise a genuine issue of material fact as to KFC’s responsibility for the hazardous condition of the sidewalk. We disagree.

Under New York law, Williams was not required to adduce the most reasonable explanation for the accident, nor was she required to eliminate all other possible causes for her fall. To avoid summary judgment, she was obligated simply to establish a reasonable probability that the accident was caused by KFC’s negligence. In Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 14 N.E.2d 828 (1938), the New York Court of Appeals considered a negligence claim arising from a defectively repaired stairway. The Appellate Division had dismissed the complaint, finding that the plaintiff had proven a defect but had failed to show a causal connection between the defect and the injury because the defendant had been able to proffer an alternative explanation for the injury. Id. at 5-6, 14 N.E.2d 828. The Court of Appeals reversed:

Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury. This does not mean that the plaintiff must eliminate every other possible cause. The plaintiff was not required to offer evidence which positively excluded every other possible cause of the accident. The existence of remote possibilities that factors other than the negligence of the defendant may have caused the accident, does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.

Id. at 7, 14 N.E.2d 828 (internal citations and quotation marks omitted). The Court found that “the natural and reasonable inference is that the plaintiff was descending the stairway with the box, when the defective tread broke under his foot and caused him to fall,” id. at 8,14 N.E.2d 828, and that the defendant’s explanation, that the plaintiff suffered a heart attack and fell, was but a “remote probability.” Id. at 6, 14 N.E.2d 828. Even though there was evidence that the plaintiff suffered from a heart condition that could have caused the accident, the Court found this possibility insufficient to eliminate, at least at the summary judgment phase, the competing inference that the defective repairs caused the accident. Id.

The New York Court of Appeals has applied this reasoning with a fair degree of consistency when evaluating the adequacy of circumstantial evidence in negligence cases. For example, in considering the case of a hospital patient who fell out of her bed because its guardrails had been lowered, the Court stated:

To establish a prima facie case of negligence based wholly on circumstantial evidence, “[i]t is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” The law does not require that plaintiffs proof “positively exclude every other possible cause” of the accident but defendant’s negligence. Rather, her proof must render those other causes sufficiently “remote” or “technical” to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences' to be drawn from the evidence.

Although plaintiff may in her attempt to meet that burden include proof tending to negate the significance of other possible causes, we have on numerous occasions upheld or reinstated a jury’s verdict where the logic of common experience itself, as applied to the circumstances ■ shown by the evidence, led to the conclusion that defendant’s negligence was the cause of plaintiffs injury.

Schneider v. Kings Highway Hosp. Ctr., Inc., 67 N.Y.2d 743, 744-45, 500 N.Y.S.2d 95, 490 N.E.2d 1221 (1986) (internal citations omitted). The Court found that the plaintiff had established a prima facie case through evidence that the hospital had a policy requiring guardrails to be raised for all patients over 70 and that it was more likely for a hospital worker than the patient herself to have lowered the rails. Even though the defendant offered evidence that the patient had previously lowered the rails, the Court concluded that the inconvenient location of the mechanism that adjusted the rails and plaintiffs frail condition made it more likely that a hospital employee had lowered them. Id. at 745, 500 N,Y.S.2d 95, 490 N.E.2d 1221. Significantly, according to the Court, the plaintiff was “not required to prove the exact nature of defendant’s negligence.” Id. Similarly, in Gayle v. City of New York, 92 N.Y.2d 936, 680 N.Y.S.2d 900, 703 N.E.2d 758 (1998), the Court of Appeals considered the claim, based on circumstantial evidence, that a large puddle on a roadway resulting from a negligently maintained drainage system was the proximate cause of an accident. The Court concluded that the Appellate Division had “erred in determining that plaintiffs were required to rule out all plausible variables and factors that could have caused or contributed to the accident.” Id. at 937, 680 N.Y.S.2d 900, 703 N.E.2d 758. Following Schneider, the Court emphasized that the plaintiff did not have to exclude all other possible causes of the accident, but only had to offer proof to render those other causes “remote” or “technical.” Id. “A plaintiff need only prove that it was ‘more likely’ or ‘more reasonable’ that the alleged injury was caused by the defendant’s negligence than by some other agency.” Id. (internal citation omitted). Lower courts in New York have also followed this standard. See, e.g., N.Y. Tel. Co. v. Harrison & Burrowes Bridge Contractors, Inc., 3 A.D.3d 606, 771 N.Y.S.2d 187 (N.Y.App. Div., 3d Dep’t 2004) (finding evidence that defendant had dropped 5,000 pound steel beams near plaintiffs cables sufficient to withstand summary judgment and holding that plaintiff was not required to establish defendant’s liability to an “unassailable certainty”).

Applying these principles, we conclude that, for summary judgment purposes, Williams presented sufficient circumstantial evidence to render the probability that someone other than KFC was responsible for the grease sufficiently “remote” or “technical” in comparison to the explanation she offered. As the District Court realized, the grease on Williams’ clothing, the statement by the responding police officer as to the presence of grease, and the statements of the private investigator as to greasy spots, all point to the existence of grease on the sidewalk. Additionally, significant testimony from the assistant manager of the restaurant establishing that KFC’s trash bags had leaked on occasion, that the bags contained greasy food residue, and that the dumpster area behind the restaurant was dirty on the date of Williams’ accident supports the inference that KFC was responsible for the greasy conditions. In light of these facts, we conclude that Williams carried her burden of establishing that a reasonable factfinder could conclude that KFC was responsible for the grease on the sidewalk and that summary judgment was not warranted on the basis of the facts before the District Court.

III. CONCLUSION

We deny KFC’s motion to dismiss this appeal for lack of jurisdiction. We vacate the judgment of the District Court and remand for further proceedings consistent with this opinion.

1 . Because we find that the District Court acted within its discretion, we need not decide whether, and alternatively, KFC has forfeited its opportunity to object. This is not to say such an argument may not have validity.

KFC relies on Silivanch, Browder, and En-dicott Johnson to argue that forfeiture analysis is inapplicable because the time to appeal set by Rule 4(a) is jurisdictional and mandatory. Since Williams offered no legally satisfactory excuse to extend the time limit set by Rule 4(a)(1), the argument goes, the District Court abused its discretion in extending the time to appeal, the appeal was untimely, and, because tire absence of jurisdiction cannot be waived or forfeited, we lack appellate jurisdiction. But these contentions ignore the important distinction between the time limitation to appeal, which is jurisdictional, and the decision to grant an extension, which may well be not.

Here, it is only Rule 4(a)’s time limits for the filing of a Notice of Appeal that are jurisdictional, and therefore, unforfeitable. Cf. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (holding that timely notice of appeal is jurisdictional and that appeal filed outside the time limits is a "nullity”); Sili-vanch, 333 F.3d at 363 (finding that if no notice of appeal is filed by the relevant deadline specified by Rule 4(a), the court of appeals lacks jurisdiction to hear the case). No one disputes that Williams received an extension of time to file an appeal and did, in fact, file her appeal in a timely manner in accordance with Rule 4(a)(5), i.e., within 60 days of January 31. Consequently, even looked at from a forfeiture point of view, the question is not the simple jurisdictional one of whether Williams filed her appeal in a timely fashion. Rather, it is the quite different question of whether, by not opposing her motion for more time, KFC forfeited the opportunity to demonstrate that Williams did not merit an extension of time based on good cause or excusable neglect.

This distinction between jurisdictional limitations that cannot be forfeited and other procedural conditions, such as exhaustion and venue, that can be subject to forfeiture analysis is common. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (noting that one condition to obtain judicial review of an agency decision was "purely 'jurisdictional' in the sense that it cannot be 'waived' " while other procedural conditions could be waived); Abbey v. Sullivan, 978 F.2d 37, 43 (2d Cir.1992) (holding that the "final decision” requirement in Medicare claims cases has two elements, "one jurisdictional (non-waivable) and one prudential (waivable)"). Similarly, in dealing with the requirement that administrative remedies be exhausted before a Title VII claim can be brought in federal court, we framed the issue as "whether proper administrative exhaustion is a jurisdictional prerequisite” or "a waiva-ble condition precedent to bringing suit.” Francis v. City of New York, 235 F.3d 763, 768 (2d Cir.2000); accord Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1525 (11th Cir.1983) (holding that all Title VII procedural requirements to suit are conditions precedent and not jurisdictional requirements).

Finally, when dealing with the removal of actions from state to federal courts, an issue that clearly raises concerns about federal jurisdiction, 28 U.S.C. § 1441; see e.g., Stephenson v. Dow Chem. Co., 346 F.3d 19, 21 (2d Cir.2003); Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 41 (2d Cir.1991), we have held that, even if removal was statutorily improper, a party opposing removal must move to remand within the 30 day limitation or the objection will be forfeited (except for objections that implicate constitutional subject matter jurisdiction such as a lack of diversity or a federal question). Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 643 (2d Cir.1993); 28 U.S.C. § 1447(c). This is the rule in other Circuits as well. For example, in Williams v. AC Spark Plugs Division of General Motors Corp., 985 F.2d 783 (5th Cir.1993), the Fifth Circuit held that:

[E]ven if a statutory provision prohibits the defendant from removing the action and the defendant removes despite a statutory proscription against such removal, the plaintiff must object to the improper removal within thirty days after the removal, or he waives his objection. Only in the case of a lack of subject matter jurisdiction — such as no diversity of citizenship, or the absence of a federal question if that were the sole ground for removal — may the plaintiff object to removal after the thirty-day limit. Any other objection is procedural and waived after thirty days.

Id. at 787; see also In re Shell Oil Co., 932 F.2d 1518, 1521 (5th Cir.1991) (acknowledging the distinction between waivable defects in removal procedure and unwaivable lack of subject matter jurisdiction); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65-66 (3d Cir.1989) (finding that district court’s sua sponte decision to remand on procedural grounds more than 30 days after the filing of the notice of removal exceeded the court's authority).

When and whether the failure to object to facts on which statutory jurisdiction is based constitutes a valid forfeiture is a complex one, and its applications in the context of Rule 4(b) extensions is by no means clear. See, e.g., Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132 (7th Cir.1996) (characterizing, without analysis, an objection to a finding of good cause under Rule 4(a)(5) as an objection to subject matter jurisdiction and, therefore, unwaiva-ble). It is one, however, that we need not decide given the facts of the case before us.