Pierce v. Engle

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on plaintiffs’ motion for an extension of time in which to file a notice of appeal in the above-captioned case. Plaintiffs seek to appeal from this court’s memorandum and order and judgments entered in defendants’ favor on defendants’ motion for summary judgment, filed by the Clerk on November 20, 1989. 726 F.Supp. 1231. Plaintiffs should have filed their notice of appeal on or before December 20, 1989, but did not file such notice until December 26, 1989. Plaintiffs’ motion for extension of time was made on January 8, 1990, after the initial thirty-day appeal period had already expired.

Plaintiffs request an additional 30 days in which to file their notice of appeal for the reason that plaintiffs’ counsel “inadvertantly (sic) utilized the mailing statute and did not count the date of entry of the Judgment and added three days for mailing, thus calculating the last date upon which to file the Notice of Appeal as December 26, 1989.”

Rule 4(a)(5) of the Federal Rules of Appellate Procedure, which governs extensions of time by the district court in which to file a notice of appeal, provides, in relevant part, as follows:

(5) 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)____

After expiration of the initial thirty-day appeal period, as in this case, a showing of “excusable neglect,” rather than mere “good cause,” is required. See Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 909-10 (7th Cir.1989). Excusable neglect requires a showing of unique or extraordinary circumstances; circumstances under which attorney error may meet the excusable neglect standard are very rare. Id. at 913. The Tenth Circuit Court of Appeals has refused to find excusable neglect even when counsel did not receive notice of the order to be appealed from until after the appeal time had run. Long v. Emery, 383 F.2d 392, 394-95 (10th Cir.1967). See also Gooch v. Skelly Oil Co., 493 F.2d 366, 370 (10th Cir.1974), cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 270; Maryland Cas. Co. v. Conner, 382 F.2d 13, 16-17 (10th Cir.1967); Cohen v. Plateau Natural Gas Co., 303 F.2d 273 (10th Cir.1962), cert. denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64.

The court accordingly finds that plaintiffs’ reason for failing to file their notice of appeal within the initial thirty-day appeal period, namely a type of administrative error due to lack of familiarity with the federal rules, does not meet the excusable neglect standard. See e.g., Marane, Inc. v. McDonald’s Corp., 755 F.2d 106 (7th Cir.1985). Thus, plaintiffs’ motion for extension of time in which to file their notice of appeal will be denied.

IT IS BY THE COURT THEREFORE ORDERED that plaintiffs’ motion for extension of time in which to file a notice of appeal is hereby denied.