Aksman v. Greenwich

21-2916-cv, 22-106-cv
Aksman v. Greenwich
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 16th day of October, two thousand twenty-three.
PRESENT:
DENNIS JACOBS,
RICHARD C. WESLEY,
BETH ROBINSON,
Circuit Judges.
_________________________________________
MICHAEL AKSMAN,
Petitioner-Appellant,
v. Nos. 21-2916(L), 22-106(Con)
GREENWICH QUANTITATIVE RESEARCH LP,
Respondent-Appellee.
_________________________________________
FOR APPELLANT: Adam Paskoff, Paskoff & Tamber LLP,
Englewoods Cliffs, N.J.
FOR APPELLEE: Paul Rauser, Serine Consolino, Aegis
Law Group LLP, Washington, D.C.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Engelmayer, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s December 21, 2021 order
denying Petitioner-Appellant Michael Aksman’s motion for extension of time to
file an appeal is AFFIRMED.
Petitioner-Appellant Michael Aksman appeals the district court’s order
denying his motion for extension of time to file an appeal. We assume the
parties’ familiarity with the underlying facts, procedural history, and arguments
on appeal, and we refer to them only as necessary to explain our decision.
Federal Rule of Appellate Procedure 4(a)(1)(A) requires that a notice of
appeal be filed within thirty days of the district court’s “entry of the judgment or
order appealed from.” See also 28 U.S.C. § 2107(a). A party can move for the
district court to extend that deadline if the party (i) “so moves no later than 30
days after the time prescribed by” Rule 4(a) and (ii) “shows excusable neglect or
good cause.” Fed. R. App. P. 4(a)(5)(A). Here, the “excusable neglect” standard
2
applies because, as explained below, Aksman’s need for an extension “results
from factors within [his] control.” Alexander v. Saul, 5 F.4th 139, 142 (2d Cir.
2021).
The district court’s evaluation of a Rule 4(a)(5) motion is “an equitable
one” that takes into account “all relevant circumstances surrounding the party’s
omission.” Pioneer Investment Services Co. v. Brunswick Associates Limited
Partnership, 507 U.S. 380, 395 (1993). That includes, in particular, the four
“Pioneer” factors: “[1] the danger of prejudice to the non-movant, [2] the length of
the delay and its potential 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.” Silivanch v. Celebrity Cruises, Inc.,
333 F.3d 355, 366 (2d Cir. 2003) (quoting Pioneer, 507 U.S. at 395). 1
We review the district court’s denial of a Rule 4(a)(5)(A) motion for abuse
of discretion. Id. at 362. “A district court has abused its discretion if it has (1)
based its ruling on an erroneous view of the law, (2) made a clearly erroneous
assessment of the evidence, or (3) rendered a decision that cannot be located
1 In quotations from case law and the parties’ briefing, this opinion omits all internal quotation
marks, alterations, footnotes, and citations, unless otherwise noted.
3
within the range of permissible decisions.” Lynch v. City of New York, 589 F.3d 94,
99 (2d Cir. 2009).
None of Aksman’s arguments persuades us that the district court’s
discretionary ruling “cannot be located within the range of permissible
decisions.” Id. First, we disagree with Aksman’s contention that the district
court failed to consider each of the Pioneer factors. The district court expressly
listed each factor in its well-reasoned opinion. See Aksman v. Greenwich
Quantitative Research LP, No. 20 Civ. 8045, 2021 WL 6551082, at *1 (S.D.N.Y. Dec.
21, 2021). Plus, as here, courts typically focus on the third Pioneer factor (the
reason for the delay) because the other factors usually, as here, favor the moving
party. Silivanch, 333 F.3d at 366; Alexander, 5 F.4th at 148–49.
Second, the district court did not abuse its discretion by failing to properly
evaluate the COVID-19 pandemic’s impact on the legal profession. As the
district court points out, Aksman’s notice of appeal was not due during the
height of the COVID-19 lockdowns; it was due on October 28, 2021. Aksman,
2021 WL 6551082, at *1. That fact alone distinguishes this case from most of the
cases cited in Aksman’s briefs, which are largely unpublished decisions from
district courts outside of this circuit.
4
Moreover, an attorney’s errors usually do not constitute excusable neglect.
The Supreme Court emphasized in Pioneer that clients must “be held accountable
for the acts and omissions of their chosen counsel.” 507 U.S. at 397. And this
Court has stressed that “absent extraordinary circumstances, attorney
inadvertence is not excusable neglect.” In re Johns-Manville Corp., 476 F.3d 118,
124 (2d Cir. 2007) (citing Silivanch, 333 F.3d at 368–70). Aksman has described an
attorney’s ordinary scheduling error, not extraordinary circumstances.
Finally, we reject Aksman’s argument that the district court abused its
discretion by failing to simultaneously consider Aksman’s attorney’s non-
COVID-19 illness 2 and COVID-19’s impact on the profession. Contrary to
Aksman’s assertion, the district court’s opinion suggests that it did consider those
facts together. See Aksman, 2021 WL 6551082, at *2 (noting Aksman’s “attempt to
blame the COVID-19 pandemic and a non-COVID-19 illness for his docketing
error does not boost his claim”) (emphasis added).
And, in any event, Aksman makes no showing that his attorney’s illness,
in conjunction with COVID-19’s impact on the legal profession, affected his
2 On appeal, Aksman suggests that his attorney’s illness may have been related to COVID-19.
See Appellant’s Br. 13. The source of his illness, in any event, is irrelevant.
5
ability to perform his duties and meet the appeal deadline. Cf. Alexander, 5 F.4th
at 150 (“We do not rule out the possibility that a severely disabled SSI claimant
could satisfy Rule 4(a)(5)’s excusable neglect standard by virtue of the claimant's
disability.”). Aksman’s attorney told the district court only that he “fell ill (non-
Covid related)” and a “confluence” of those events caused him to erroneously
calendar the appeal deadline for 60 days, not 30. App’x 277. The district court
did not abuse its discretion by rejecting these barebones representations.
Accordingly, we AFFIRM the district court’s order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6