Global Horizons Inc. v. Del Monte Fresh Produce, N.A., Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-16508 AUGUST 17, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK

D. C. Docket No. 06-22315-CV-FAM

GLOBAL HORIZONS INCORPORATED,
a California Corporation,

Plaintiff-Counter
Defendant-Appellant,

versus

DEL MONTE FRESH PRODUCE, N.A., INC.,
a Florida Corporation a.k.a.
Country Best Inc., d.b.a.
Del Monte Fresh Produce Company,

Defendant-Counter
Claimant-Appellee.
________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(August 17, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
 Plaintiff Global Horizons appeals the district court’s denial of Plaintiff’s

Motion to Extend Time to File Notice of Appeal, arguing that the district court

should have granted the motion based on “excusable neglect” under Federal Rule

of Appellate Procedure 4(a)(5). We review the district court’s decision for an

abuse of discretion. Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 977

(11th Cir. 1997).

A party in a civil case must file a notice of appeal “within 30 days after the

judgment or order appealed from is entered” to invoke the jurisdiction of the

appellate court. Fed. R. App. P. 4(a)(1)(A); United States v. Grant, 256 F.3d

1146, 1150 (11th Cir. 2001). “The timely filing of a notice of appeal is a

mandatory prerequisite to the exercise of appellate jurisdiction.” Grant, 256 F.3d

at 1150 (quotation omitted). Federal Rule of Appellate Procedure 4(a)(5)(A)(ii),

however, allows a district court, in its discretion, to extend the time to appeal if the

party establishes “excusable neglect or good cause” to justify the late filing.

In the context of a bankruptcy proceeding, the Supreme Court set forth

several factors courts should take into account to determine whether a party’s

neglect of a deadline is excusable under the Bankruptcy Code. Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 113 S. Ct. 1489. We have

determined that these factors are also applicable in the Rule 4(a)(5) context; thus

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we have held that, in determining whether a party has demonstrated excusable

neglect, courts should “‘tak[e] account of all relevant circumstances surrounding

the party’s omission,’ including ‘the danger of prejudice to the [nonmovant], 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.’” Advanced Estimating Sys. v. Riney,

77 F.3d 1322, 1325 (11th Cir. 1996) (quoting Pioneer, 507 U.S. at 395, 113 S. Ct.

at 1498).

Here, the district court recited the Pioneer standard for excusable neglect

and determined that “all the Pioneer factors balanced together weigh in

Defendant’s favor.” Specifically, the court determined that miscalendaring a

deadline was within the reasonable control of the Plaintiff, and that the

“cumulative effect” of the Plaintiff’s missed deadlines exhibited an absence of

good faith. Reviewing the decision by the district court for abuse of discretion,

Advanced Estimating Sys., 130 F.3d at 997, we discern no reversible error in the

district court’s decision to refuse to extend the time for the Plaintiff to appeal.1

Upon careful consideration of the record and the parties’ briefs, we affirm.

1
Because we lack jurisdiction over this appeal absent a timely notice of appeal,
Grant, 256 F.3d at 1150, we do not reach the additional issues raised by Appellant in the initial
brief.

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AFFIRMED.2

2
Appellant’s request for oral argument is DENIED.

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