Chung v. Lamb

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 12, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
EMILY BOSCOE CHUNG,

Plaintiff - Appellant,

v. Nos. 18-1479 & 19-1056
(D.C. No. 1:14-CV-03244-WYD-KLM)
TIMOTHY J. LAMB; TIMOTHY J. (D. Colo.)
LAMB, P.C.,

Defendants - Appellees.

--------------------

KAREN A HAMMER,

Attorney - Appellant.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before HOLMES, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________

In these procedurally consolidated appeals, Emily Boscoe Chung and Karen

Hammer appeal in No. 18-1479 from the district court’s entry of final judgment in

favor of the defendants and in No. 19-1056 from the district court’s denial of their

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
motion to file an untimely appeal. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm the district court in No. 19-1056 and dismiss No. 18-1479 for lack of

jurisdiction because it is untimely.

I. Background

Ms. Hammer, an attorney, filed the underlying case, purportedly on behalf of

her client Ms. Boscoe Chung, to redress Mr. Lamb’s alleged violations of the Fair

Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692–1692p. More than three

years later, Ms. Hammer disclosed an agreement wherein Ms. Boscoe Chung

assigned her FDCPA claims to Ms. Hammer before Ms. Hammer filed the action.

The district court then granted summary judgment to Mr. Lamb and his law firm on

the grounds that Ms. Boscoe Chung lacked party-in-interest standing due to the

assignment. It also rejected Ms. Hammer’s attempt to be substituted as the plaintiff

under Fed. R. Civ. P. 17(a)(3), noting that “Ms. Hammer presents the gold standard

evidence of intentionally naming the incorrect real party in interest as a tactical

maneuver.” Aplt. App. Vol. 13 at 3270.1

The district court entered its final judgment on November 14, 2018. Under

Fed. R. App. P. 4(a)(1)(A), the deadline to file a notice of appeal expired on Friday,

1
The district court found that Ms. Hammer named Ms. Boscoe Chung as the
plaintiff “so that she could rely on issue preclusion” from a state court proceeding,
Aplt. App. Vol. 13 at 3272 (brackets omitted) (internal quotation marks omitted), and
that Ms. Hammer engaged in a “four-year crusade to hide the real party in interest
from Mr. Lamb and [the] Court,” id.

2
December 14, 2018. Early on December 15, 2018, Ms. Hammer2 filed a motion for

an extension of the deadline to file a notice of appeal. The motion explained:

Counsel Hammer has had several client emergencies beyond the control
of either counsel or her clients that interfered with counsel’s being able
to carry forward the work on this appeal other than in the final days
before the deadline, when she was hit with significant gastrointestinal
issues. Today, Hammer also experienced multiple technological issues
that cut her off from her office network, her printer, and the Internet
during the limited time when she was able to work. This motion is
being filed only because Hammer determined that she needed to briefly
access other offices this evening to enable her to seek this relief.

Aplt. App. Vol. 13 at 3335.

Shortly after filing the motion, Ms. Hammer filed a letter with the district

court explaining that “[l]ate” on December 14, 2018, she “began accessing the ECF

system to file [the] motion for an extension of the appeals deadline in this case.” Id.

at 3338 (emphasis added). In the process of attempting to file the motion, she first

mistakenly logged in to a training website and not the court’s official ECF website.

She then attempted to log in to the official ECF website using incorrect credentials.

Within 15 minutes she resolved that problem and filed the motion for an extension of

the deadline to appeal at 12:16 a.m. on December 15, 2018.

Ms. Hammer filed a three-page notice of appeal from the district court’s final

judgment on December 17, 2018. The district court denied the motion for an

extension of time to appeal by order dated January 17, 2019.

2
Because the district court found that Ms. Hammer is the real party in interest,
and because Ms. Hammer took all the actions relevant to this appeal, we generally
refer to only Ms. Hammer herein even though she took some actions nominally on
behalf of Ms. Boscoe Chung.
3
 We then issued an order to show cause why the appeal should not be dismissed

for lack of jurisdiction. Ms. Hammer responded by arguing that the district court

clerk’s office was inaccessible on December 14, 2018 such that Fed. R. App. P.

26(a)(3) operated to extend the deadline to file a notice of appeal to December 17,

2018.3 She also filed a separate appeal of the district court’s order denying the

motion for an extension of time to appeal and argued that reversal of that order would

give this court jurisdiction.

We consolidated the two appeals for procedural purposes and deferred

judgment on the jurisdictional question, which we now address.

II. Discussion

“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional

requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). We therefore cannot

hear an appeal if the appellant files the notice of appeal after the deadline. See, e.g.,

Alva v. Teen Help, 469 F.3d 946, 948 (10th Cir. 2006) (dismissing appeal for lack of

jurisdiction where appellant filed notice of appeal six minutes late).

A. Ms. Hammer Filed the Notice of Appeal in No. 18-1479 After the Deadline

The deadline for filing a notice of appeal “is extended to the first accessible

day that is not a Saturday, Sunday, or legal holiday” “if the clerk’s office is

inaccessible” “on the last day for filing.” Fed. R. App. P. 26(a)(3). Ms. Hammer

argues that her errant attempts to log in to the court’s ECF system during December

3
Under Fed. R. App. P. 3(a)(1), parties must file their notice of appeal with
the district court clerk.
4
14’s waning hours rendered the clerk’s office “inaccessible” that day. We reject this

argument.

In making the argument, Ms. Hammer does not allege that she was attempting

to file the notice of appeal when she mistakenly logged in to the wrong website and

thereafter used the wrong credentials.4 Nor does she allege that the system would

have prevented her from filing the notice of appeal at any time on December 14 had

she accessed the correct site and used the correct credentials. And she admits that

she did not follow the district court’s directions for accessing the ECF site.5

Ms. Hammer has not cited a single case where an individual litigant’s errors or

delays in attempting to file a pleading warranted a finding that the clerk’s office was

“inaccessible” on the day in question. But in many cases courts have rejected similar

arguments. See, e.g., Justice v. Town of Cicero, 682 F.3d 662, 665 (7th Cir. 2012) (“A

crash of the lawyer’s computer, or a power outage at 11:50 PM, does not extend the

deadline, even though unavailability of the court’s computer can do so . . . .”) (construing

Fed. R. Civ. P. 6(a)(3)); Chao Lin v. U.S. Att’y Gen., 677 F.3d 1043, 1046

(11th Cir. 2012) (declining to hold that the clerk’s office was inaccessible where

4
Ms. Hammer was instead attempting to file her motion for leave to file the
notice of appeal out of time.
5
The District of Colorado recommends accessing its ECF system by either
clicking the link on its website or by directly typing the URL,
https://ecf.cod.uscourts.gov, into a browser. See U.S. Dist. Ct.—Dist. of Colo.,
Electronic Case Filing User Manual 10 (Version 6.1 2018),
http://www.cod.uscourts.gov/Portals/0/Documents/CMECF/ECF_User_Manual_Vers
ion_6.1.pdf. Ms. Hammer attempted to access the ECF system via a search engine
not affiliated with the court, which she claims directed her to the wrong site.
5
Federal Express failed to deliver a petition by the filing deadline); In re Sands,

328 B.R. 614, 619 (Bankr. N.D.N.Y. 2005) (“Problems occurring in counsel’s office,

such as a poor Internet connection or a hardware problem, will not excuse [a party’s]

untimely filing. It is incumbent on the [party] to show that the clerk’s office was

subject to a CM/ECF system failure.”) (finding that bankruptcy petition was not filed

prior to foreclosure sale for purposes of 11 U.S.C. § 362 where attorney logged in to

ECF 11 minutes before the sale began but did not complete the filing until after the

sale).

Ms. Hammer’s misplaced efforts to reach the correct filing platform do not

render the clerk’s office inaccessible any more than entering the wrong street address

into her GPS would have if she were attempting to file a paper copy. The clerk’s

office was accessible on December 14, Ms. Hammer simply failed to access it.

B. The District Court Did Not Abuse Its Discretion in Denying the Motion For an
Extension of Time to File a Notice of Appeal

The district court can extend the time for a party to file a notice of appeal if

the “party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(a)(ii).

The district court found that Ms. Hammer failed to establish either.

We review the district court’s refusal to extend the time for filing for abuse of

discretion. Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004). Under this

standard, we will not disturb the district court’s decision unless we have “a definite

and firm conviction that the lower court made a clear error of judgment or exceeded

6
the bounds of permissible choice in the circumstances.” Id. (internal quotation marks

omitted).

Ms. Hammer first contends that the district court abused its discretion in

denying the motion for an extension of the deadline to appeal because “the court

treated [her] sworn evidence of facts as if they were merely unsupported

‘allegations.’” Aplt. Resp. to Order to Show Cause at 8; see also Aplt. Reply Br. at

11.6 In particular, Ms. Hammer finds fault in the district court’s disregard of her

conclusory “sworn statement” that her reasons for missing the deadline were “beyond

her control and/or not her fault.” Aplt. Resp. to Order to Show Cause at 8 (internal

quotation marks omitted).

Ms. Hammer misapprehends the district court’s decision and her burden. The

court fully considered Ms. Hammer’s proffered evidence. But it found that evidence

legally insufficient to support the relief requested. In reaching its conclusion, the

district court found that “the real cause of the late notice of appeal was . . . waiting

until at or near the deadline to prepare the notice of appeal.” Aplt. App. Vol. 14 at

3433. And Ms. Hammer does not argue on appeal that the district court erred in

making this finding.

6
Ms. Hammer first made her arguments regarding the district court’s alleged
abuse of discretion in response to our order to show cause why her appeal should not
be dismissed for lack of jurisdiction. Ms. Hammer did not renew any of these
arguments in her opening brief, relying instead only on her argument that the clerk’s
office was inaccessible on December 14, 2018. But she did renew them in her reply
brief. We address them in connection with ruling on the order to show cause.
7
 The district court’s approach comported with our precedent. “[W]e have on

numerous prior occasions indicated that the thirty-day period for filing a notice of

appeal . . . [is] not to be extended except on a real showing of excusable neglect.”

Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir. 1974) (emphasis added). A

party does not automatically establish excusable neglect or good cause by simply

submitting a sworn attorney statement recounting the reasons that a party missed the

deadline. See, e.g., id. at 369 (reversing district court finding of excusable neglect

based on facts recounted in attorney affidavit); Buckley v. United States,

382 F.2d 611, 613–15 (10th Cir. 1967) (holding that facts recounted in attorney

affidavit were legally insufficient to support a finding of excusable neglect).

Instead, the facts must actually show that the neglect was legally excusable or

that good cause exists. Cf. United States v. Lucas, 597 F.2d 243, 245

(10th Cir. 1979) (per curiam) (“The burden of establishing a sufficient reason for

failure to comply with the filing requirements remains with the appellant.”). Ms.

Hammer does not argue on appeal that the evidence she presented legally supported a

finding of excusable neglect or good cause. We have nonetheless carefully reviewed

the evidence presented by Ms. Hammer and conclude the district court acted well

within its discretion in finding Ms. Hammer’s proffered evidence insufficient.

Ms. Hammer next contends we should reverse because the district court (1)

demonstrated conscious bias toward Ms. Hammer and (2) harbored unconscious bias

against Ms. Hammer that tainted its decision.

8
 To support her bias allegations, Ms. Hammer points to the district judge’s

adverse rulings on prior matters, management of briefing and deadlines in the case,

and questioning regarding the ethical nature of Ms. Hammer’s arrangement with

Ms. Boscoe Chung. She also relies on alleged ex parte communications between

opposing counsel and the magistrate judge’s staff7 on topics unrelated to

Ms. Hammer’s motion to extend the deadline to appeal.

“Ordinarily, when a judge’s words or actions are motivated by events

originating within the context of judicial proceedings, they are insulated from charges

of bias.” United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005). “[A]dverse

rulings [therefore] cannot in themselves form the appropriate grounds for

disqualification.” Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (internal

quotation marks omitted). “A judge’s ordinary efforts at courtroom administration,”

are likewise “immune” from charges of bias. Liteky v. United States, 510 U.S. 540,

555–56 (1994). And ex parte communications, in themselves, do not automatically

establish that an adjudicator “abandoned the impartial judicial role.” J.B. v.

Washington County, 127 F.3d 919, 926 (10th Cir. 1997). Nor can a decision be

invalidated based on mere speculation that an ex parte communication may have

influenced that decision. See West v. Grand County, 967 F.2d 362, 370

(10th Cir. 1992).

7
The district judge, and not the magistrate judge, ruled on the motion for an
extension of time to appeal.
9
 The district court’s actions that Ms. Hammer impugns do not evince bias and

do not warrant reversal under applicable precedent.

III. Conclusion

The district court’s denial of Ms. Hammer’s motion to extend the deadline to

appeal in No. 19-1056 is affirmed. We therefore dismiss No. 18-1479 for lack of

jurisdiction.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

10