David S. Yang v. Bullock Financial Group, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15172 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-00528-TCB
DAVID S. YANG,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
BULLOCK FINANCIAL GROUP, INC.,
d.b.a. Northwestern Mutual Life Insurance, Co.,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 22, 2011)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
David S. Yang appeals the denial of his motion to extend time to file a
notice of appeal, which he made following the district court’s grant of summary
judgment to his former employer, Bullock Financial Group, Inc., in a
discrimination suit.1 On appeal, Yang argues that the district court abused its
discretion in finding that the circumstances surrounding his untimely filing did not
constitute “excusable neglect.” Specifically, he contends that the court “gave mere
lip service” to the excusable-neglect standard, and instead focused solely on the
merits of the underlying suit.
The Federal Rules of Appellate Procedure provide that a party in a civil case
must file a notice of appeal “within 30 days after the judgment or order appealed
from is entered” in order to invoke the jurisdiction of the appellate court.
Fed.R.App.P. 4(a)(1)(A). The timely filing of a notice of appeal is a mandatory
prerequisite to the exercise of our appellate jurisdiction. Advanced Estimating
Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11th Cir. 1996). However, a district court
may extend the time to appeal if the party establishes “excusable neglect or good
cause” to justify the late filing. Fed.R.App.P. 4(a)(5)(A)(ii).
1
James R. Worrell, General Agent, Inc. was originally named as a defendant, but
was later dropped from the suit.
2
We review a district court’s decision regarding “excusable neglect” for an
abuse of discretion. Riney, 77 F.3d at 1325. “[A]n abuse of discretion occurs if
the judge fails to apply the proper legal standard or to follow proper procedures in
making the determination, or makes findings of fact that are clearly erroneous.”
Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir.
2006). When a district court applies an improper legal standard in evaluating a
claim of excusable neglect, we may choose to either remand the case for
application of the proper standard, or may apply the proper standard in the first
instance. See Riney, 77 F.3d at 1325 (remanding for reconsideration); Conn. State
Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1356-57 (11th Cir.
2009) (reversing the denial of a motion). Remanding for application of the correct
standard is often appropriate because the excusable-neglect standard allows the
district court room for the exercise of discretionary judgment. Riney, 77 F.3d at
1325.
The Supreme Court established a four-factor test for determining whether a
party’s neglect of a deadline is excusable. Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993). We
subsequently held that the Pioneer factors apply in the context of motions to
extend time to appeal. Riney, 77 F.3d at 1323. Accordingly, courts determine
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whether an untimely appeal should be excused by assessing: (1) the risk of
prejudice to appellee; (2) the length of delay and its potential impact on the
proceedings; (3) the reason for the delay and whether the delay was within the
reasonable control of the moving party; and (4) whether the appellant acted in
good faith. Id. at 1325.
The Pioneer standard is “at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at
395, 113 S. Ct. at 1498 (emphasis added). In applying the standard, “the Supreme
Court accorded primary importance to the absence of prejudice to the nonmoving
party and to the interest of efficient judicial administration.” Cheney v. Anchor
Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996). Since Pioneer, we
have assessed these factors in a number contexts. For example, in Cheney, we
considered whether to excuse, pursuant to Fed.R.Civ.P. 60(b), an untimely
demand for a trial that was filed six-days after the applicable deadline. We found
that the nonmovant was not prejudiced by the delay since it was not “lulled” by the
untimely filing. We further explained that, given the short delay, the district court
proceedings would not be adversely impacted by permitting the case to be tried.
Id.4
With respect to Pioneer’s inquiry into the “reason for the delay,” we
recognize that untimely filing caused by inadvertence, mistake, or carelessness
may still constitute “excusable neglect.” See Riney, 77 F.3d at 1324. For
example, in Cheney, we suggested that an untimely filing was excusable because
the movant’s two attorneys failed to communicate with each other about who was
responsible for filing. See Cheney, 71 F.3d at 850. As to Pioneer’s good-faith
inquiry, we assess whether the movant intentionally sought advantage by untimely
filing. Id.In the instant case, the district court abused its discretion by failing to
properly consider the Pioneer factors. Rather than focusing on the merits of the
underlying action, the district court should have made specific findings regarding
the legitimacy of the reason for the delay and the risk of adverse consequences
resulting from the delay itself. Because the Pioneer standard affords significant
discretion in making such findings, we vacate the district court’s order and remand
the case for reconsideration.
VACATED AND REMANDED.
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