United States Court of Appeals,
Eleventh Circuit.
No. 95-4834
Non-Argument Calendar.
ADVANCED ESTIMATING SYSTEM, INC., a Florida Corporation,
Plaintiff-Counter-Defendant-Appellee,
v.
Timothy J. RINEY, Damon, Inc., a Florida Corporation, Defendants-
Counter-Claimants-Appellants,
Leon V. Cursons, Counter-Defendant,
John Wagner Associates, Inc., a California Corporation d/b/a
Grabber d/b/a Mike Anderson, Third-Party-Plaintiff.
March 19, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 91-8378-CIV-KLR), Kelleth L. Ryskamp,
Judge.
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
This appeal arises from a final judgment in a software
infringement case entered in favor of the appellee, Advanced
Estimating Systems, Inc., against the appellants, Timothy Riney and
Damon, Inc. The appellants appeal from the district court's
decision denying their Rule 4(a)(5) motion for an extension of time
to file notice of appeal.
I.
The district court, following a jury trial, entered final
judgment against the appellants, who were the defendants in that
court. Following the entry of final judgment in favor of the
plaintiff, the appellants had thirty days to file a notice of
appeal. Fed.R.App.P. 4(a)(4); Campbell v. Wainwright, 726 F.2d
702, 703 (11th Cir.1984). The appellants failed to file their
notice of appeal within the allotted 30 days; instead they filed
an untimely notice of appeal over three weeks late. Upon realizing
the notice was late, the appellants moved the district court for a
Rule 4(a)(5) extension of time to file notice of appeal. Before
the district court ruled on the appellants' motion for extension,
this Court held that the appellants' notice of appeal had been
untimely and remanded the case for the district court to determine
whether "excusable neglect" was present, within the meaning of
Federal Rule of Appellate Procedure 4(a)(5).
After holding a hearing, following remand, the district court
decided that the appellants' failure to file a timely notice of
appeal was not the result of excusable neglect, and for that reason
denied their motion for extension of time to file the appeal. In
making that decision, the district court applied the "unique
circumstances" standard for determining excusable neglect, see,
e.g., Borio v. Coastal Marine Const. Co., 881 F.2d 1053, 1055 (11th
Cir.1989). The appellants filed a timely appeal of the order
denying their motion for extension of time to file an appeal.
Their principal contention is that the district court erred in not
applying the excusable neglect standard and analysis that was
announced in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
We agree.
II.
The Supreme Court has emphasized that the timely filing of a
notice of appeal is "mandatory and jurisdictional." Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400,
403, 74 L.Ed.2d 225 (1982). If the notice is not timely filed, the
appellate court is without jurisdiction to hear the appeal. Pinion
v. Dow Chem., U.S.A., 928 F.2d 1522, 1525 (11th Cir.), cert.
denied, 502 U.S. 968, 112 S.Ct. 438, 116 L.Ed.2d 457 (1991).
However, a district court is permitted to extend the time for
filing an appeal if the party seeking the extension shows
"excusable neglect." Fed.R.App.P. 4(a)(5). The appellants contend
that there was excusable neglect in this case because appellants'
counsel erroneously believed that the period for filing an appeal
had been tolled.
Appellants' counsel believed that his filing of Rule 59 and
60 motions had tolled the time for filing the notice of appeal.
Despite the thirty-day time restriction mandated by Rule 4, the
running of the appeal period may be tolled by filing one of the
motions listed in Rule 4, including a Rule 59 or 60 motion. Only
if such a motion is filed timely, however, will it successfully
suspend the appeal period. Fed.R.App.P. 4(a)(4). Untimely motions
under Rules 59 and 60 will not toll the time for filing an appeal.
Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.1980). Rule 59 and
60 motions are timely if filed within 10 days of entry of final
judgment. Fed.R.Civ.P. 59(b) (a motion for new trial shall be
served not later than ten days after the entry of judgment);
Fed.R.App.P. 4(a)(4)(F) (a Rule 60 motion will suspend the period
of appeal if the motion is served within ten days after the entry
of judgment). The appellants filed their Rule 59 and 60 motions
twelve business days after entry of judgment.1 Accordingly, as
appellants' concede, their Rule 59 and 60 motions were untimely and
thus did not extend the time for filing a notice of appeal.
Although it is clear that appellants' Rule 59 and 60 motions
were untimely and thus do not change the late status of appellants'
notice of appeal, it is not clear that appellants' counsel's belief
to the contrary does not constitute excusable neglect under Rule
4(a)(5). The Supreme Court recently established a flexible
analysis of excusable neglect. In Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489,
123 L.Ed.2d 74 (1993), the Court held that an attorney's
inadvertent failure to file a proof of claim can constitute
excusable neglect under Bankruptcy Rule 9006(b)(1). Id. at 382-84,
113 S.Ct. at 1492. Interpreting the plain meaning of the phrase
"excusable neglect," the Court concluded, "Congress plainly
contemplated that the courts would be permitted, [when]
appropriate, to accept late filings caused by inadvertence,
mistake, or carelessness, as well as by intervening circumstances
beyond the party's control." Id. at 388, 113 S.Ct. at 1495.
In clarifying the meaning of excusable neglect as that term is
used in Bankruptcy Rule 9006(b)(1), the Supreme Court reviewed the
meaning of the term in the context of non-Bankruptcy Rules that
1
Appellants' counsel filed these motions late because he
erroneously calendared his deadline for filing the motions based
on the date counsel received the court's order, instead of the
date the order was actually entered on the docket. See
Fed.R.Civ.P. 59(b) (motion for new trial shall be served not
later than ten days after the entry of judgment); Fed.R.App.P.
4(a)(4)(F) (Rule 60 motion must be filed within ten days of entry
of judgment in order to affect time for filing a notice of
appeal).
allow for late filings. Id. at 391-94 & 392 n. 9, 113 S.Ct. at
1496-97 & 1496 n. 9 (discussing Federal Rules of Civil Procedure
6(b), 13(f), and 60(b)(1) and (6) and Federal Rule of Criminal
Procedure 45(b)). The Court's analysis of what constitutes
excusable neglect for purposes of Rule 9006(b)(1) rested on the
plain meaning of the term, and consideration of the same term in
the context of both the Bankruptcy Rules and the Federal Rules of
Civil Procedure. There is no reason that the meaning would be
different in the context of Federal Rule of Appellate Procedure
4(a)(5), and one of our recent decisions indicates that it is not.
In Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th
Cir.1996), we applied Pioneer to the meaning of excusable neglect
as used in Federal Rule of Civil Procedure 60(b). There is no
reason why Pioneer's excusable neglect analysis would apply to the
term as used in Rule 60(b) but not as used in Federal Rule of
Appellate Procedure 4(a)(5). We hold that Pioneer does apply to
determinations of excusable neglect within the meaning of Rule
4(a)(5). Our holding is consistent with that of every other
circuit to consider this precise issue or the same issue involving
the excusable neglect provision of Federal Rule of Appellate
Procedure 4(b) (which applies to appeals in criminal cases). See
United States v. Clark, 51 F.3d 42, 44 (5th Cir.1995) ("We agree
... that Pioneer controls determinations of excusable neglect under
Rule 4(b)."); Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d
451, 454 n. 3 (1st Cir.1995) ("We agree with the Tenth Circuit that
Pioneer's exposition of excusable neglect, though made in the
context of late bankruptcy filings, applies equally to Fed.R.App.P.
4(a)(5)."); Reynolds v. Wagner, 55 F.3d 1426, 1429 (9th Cir.) ("We
are persuaded that "excusable neglect' in the context of Rule
4(a)(5) has the same meaning as the Supreme Court recently
determined in the Bankruptcy Rules context."), cert. denied, ---
U.S. ----, 116 S.Ct. 339, 133 L.Ed.2d 237 (1995); Fink v. Union
Central Life Ins. Co., 65 F.3d 722, 724 (8th Cir.1995) ("We believe
the Pioneer interpretation of excusable neglect under the
Bankruptcy Rules also applies when interpreting excusable neglect
under Federal Rule of Appellate Procedure 4(a)(5)."); Candela
Laser Corp. v. Cynosure, Inc., 43 F.3d 1485, 1994 WL 702194, *2
(Fed.Cir.1994) (unpublished opinion) (applying Pioneer excusable
neglect analysis to Rule 4(a)(5) excusable neglect); City of
Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th
Cir.1994) ("Because the Court's analysis of what constitutes
"excusable neglect' in the bankruptcy context rested on the plain
meaning of the terms, there is no reason that the meaning would be
different in the context of Fed.R.App.P. 4(a)(5)."), cert. denied,
--- U.S. ----, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995); United
States v. Hooper, 9 F.3d 257, 259 (2d Cir.1993) ("Pioneer thus
controls the resolution ... of "excusable neglect' under Rule
4(b)."); cf. Jackson v. Hoylman, 12 F.3d 212, 1993 WL 501591, *5
(6th Cir.1993) (unpublished opinion) (applying Pioneer excusable
neglect analysis to Rule 6(b)).
III.
In Pioneer, the Supreme Court held that when analyzing a claim
of 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." Id. at
395, 113 S.Ct. at 1498. Primary importance should be accorded to
the absence of prejudice to the nonmoving party and to the interest
of efficient judicial administration. Cheney, 71 F.3d at 850. To
the extent that our past decisions interpreting excusable neglect
apply an unduly strict standard in conflict with Pioneer, they are
no longer controlling precedent.
Although we review excusable neglect decisions only for an
abuse of discretion, application of an incorrect legal standard is
an abuse of discretion. Cheney, 71 F.3d at 849 n. 2. By applying
the "unique circumstances" standard of excusable neglect, which it
construed as not being satisfied by "mere palpable mistake or
administrative failure of counsel or counsel's staff," instead of
the more forgiving Pioneer standard, the district court erred.
The appellants urge us to apply the Pioneer standard in the
first instance, and Cheney establishes that we can do so, at least
in some cases. However, nothing about Pioneer changed the
excusable neglect decision into a mechanical one devoid of any room
for the exercise of discretionary judgment. See Pioneer, 507 U.S.
at 392, 113 S.Ct. at 1496 (" "excusable neglect' ... is a somewhat
"elastic concept' "). Accordingly, the district court will often
have some range of choice in deciding excusable neglect issues.
See United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989) ("the
abuse of discretion standard allows "a range of choice for the
district court, so long as that choice does not constitute a clear
error of judgment"). In view of that, and under the circumstances
of this case, we prefer to remand this case to the district court
in order to give it the first opportunity to decide the excusable
neglect issue, under the legal standard of Pioneer, as applied in
Cheney. See Macklin v. Singletary, 24 F.3d 1307, 1311 (11th
Cir.1994) ("We should be more reluctant to address initially an
issue that is subject to an abuse of discretion standard of review
than an issue subject to a de novo standard of review."), cert.
denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).
IV.
We VACATE the district court's order denying the appellants'
Rule 4(a)(5) motion and REMAND the case to the district court for
further proceedings consistent with this opinion.