[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 31, 2008
No. 07-14539 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01432-CV-ORL-22-UAM
ANESH GUPTA,
Plaintiff-Appellant,
versus
WALT DISNEY WORLD COMPANY,
Defendant-Appellee,
MICHAEL D. EISNER, Individually and in his
official capacity as president & chief operating
officer of the Walt Disney Company, et. al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 31, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
This appeal involves taxation of costs. We earlier affirmed the summary
judgment in favor of Walt Disney World Company and against Anesh Gupta’s
complaint of employment discrimination, Gupta v. Walt Disney World Co., No.
07-11409 (11th Cir. Nov. 27, 2007), but Gupta now appeals the denial of his
motion for an extension of time to file a notice of appeal regarding the taxation of
costs against him. Gupta challenges the denial of his motion for an extension on
two grounds: (1) Gupta established excusable neglect, see Fed. R. App. P.
4(a)(5)(A)(ii); and (2) the district court should have treated Gupta’s motion as a
motion to reopen the time to file an appeal, see Fed. R. App. P. 4(a)(6). Although
the district court did not abuse its discretion when it denied relief under Rule
4(a)(5), we vacate and remand for the district court to consider whether Gupta is
entitled to relief under Rule 4(a)(6).
A party in a civil case must file a notice of appeal “within 30 days after the
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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
(quoting United States v. Ward, 696 F.2d 1315, 1317 (11th Cir. 1983)) (internal
quotation marks omitted). Ordinarily, “[l]ack of notice of the entry by the clerk”
does not affect the time to appeal or authorize the court to relieve a party for failure
to appeal within the time allowed, Fed. R. Civ. P. 77(d).
There are two ways that a late filing may be excused. 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). The district court may also
reopen the time to file an appeal if “the court finds that the moving party did not
receive notice . . . of the entry of the judgment or order sought to be appealed[.]”
Fed. R. App. P. 4(a)(6)(A). We review the decision by the district court for abuse
of discretion. Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997 (11th
Cir. 1997).
The district court did not abuse its discretion when it refused to extend the
time for Gupta to appeal, under Rule 4(a)(5). To determine whether to extend the
time for filing a notice of appeal, a district court must “[t]ake account of all
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relevant circumstances surrounding the party’s omission,” and consider, among
other factors, 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
from Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395,
113 S. Ct. 1489, 1498 (1993)) (internal quotation marks omitted). The district
court was forced to resolve conflicting evidence to reach its decision and
reasonably balanced the above factors to reach its decision.
Gupta alleged in his August 28, 2007, motion for an extension of time that
he did not receive a copy of the amended bill of costs and “was informed” on
August 27, 2007, that the “Clerk of the Court . . . forgot to mail the [amended bill
of costs][,]” but the record contained evidence that Gupta received notice of the
July 9, 2007, entry of judgment. Gupta received a copy of the order of July 5,
2007, in which the district court directed the clerk to “enter an Amended Bill of
Costs [in] the amount of $6,395.84” and attached a copy of the order to his July 18,
2007, motion to stay the proceedings. An electronic receipt states that the clerk
mailed a copy of the amended bill of costs to Gupta on July 9, 2007, to the mailing
address listed on Gupta’s pleadings.
The district court had “some range of choice” when it concluded that Gupta
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was not entitled to extend the time to appeal. Advanced Estimating Sys., 77 F.3d
at 1325 (citing United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989)). The
record suggested that Gupta received notice of the amended bill of costs and the
district court had already reviewed and reduced the bill of costs. In this
circumstance, the district court did not abuse its discretion when it denied Gupta’s
motion for an extension of time. See id. (“Primary importance should be accorded
to the absence of prejudice to the nonmoving party and to the interest of efficient
judicial administration.”).
Although the district court did not abuse its discretion when it denied Gupta
relief under Rule 4(a)(5), the record is unclear whether the district court considered
Gupta’s motion under Rule 4(a)(6). Rule 4(a)(6) allows a district court to reopen
the time to file an appeal if the movant did not receive notice of the entry of
judgment. The record established that the clerk used the same mailing address to
notify Gupta of the entry of judgment on April 11, 2007, and July 9, 2007, and
Gupta alleged that he did not receive notice of the entry of either judgment. The
district court stated that Gupta had failed to establish good cause or excusable
neglect, which is relevant under Rule 4(a)(5), but the district court did not mention
the standard applied under Rule 4(a)(6). Because “we have a duty to liberally
construe a pro se litigant’s assertions to discern whether jurisdiction to consider his
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motion can be founded on a legally justifiable base[,]” we remand the case to the
district court to consider whether to grant Gupta relief under Rule 4(a)(6). Sanders
v. United States, 113 F.3d 184, 187 (11th Cir.1997) (quoting Fernandez v. United
States, 941 F.2d 1488, 1491 (11th Cir. 1991)) (internal quotation marks omitted).
We AFFIRM the denial of Gupta’s motion under Rule 4(a)(5), but
otherwise VACATE the denial of Gupta’s motion and REMAND for further
consideration under Rule 4(a)(6).
AFFIRMED in part and VACATED and REMANDED in part.
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