United States Court of Appeals
For the First Circuit
Nos. 93-2010
93-2217
ANA VIRELLA-NIEVES, ET AL.,
Plaintiffs, Appellees,
v.
BRIGGS & STRATTON CORPORATION, ET AL.,
Defendants, Appellees.
AIRCAP INDUSTRIES, INC., AND CIGNA INSURANCE COMPANY,
Defendants, Appellants.
No. 93-2229
ANA VIRELLA-NIEVES, ET AL.,
Plaintiffs, Appellants,
v.
AIRCAP CORPORATION, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Steven C. Lausell with whom Manuel San Juan was on brief for
plaintiffs.
Francisco J. Colon-Pagan with whom Keith A. Vanderburg was
on brief for defendants.
May 4, 1995
COFFIN, Senior Circuit Judge. The district court, finding
that defendants had "good cause" for their failure to file a
notice of appeal within the applicable thirty-day period, issued
an order extending their time to file an appeal. Because "good
cause" is not the proper basis for an extension of time under the
circumstances present here, we must vacate the court's order.
I. Background
After trial, the jury returned a verdict for plaintiffs on
their product liability action. Both sides then filed timely
post-trial motions, which were denied by the court on July 12,
1993. The clerk of court received and filed the court's orders
denying the motions that same day and docketed them on July 13.
It is uncontested that, on July 14, the clerk's office mailed
copies of the orders to defendants and that defendants received
them. These copies showed that the judge had signed the orders
and the clerk's office had received and filed them on July 12.
Defendants submit, however, that they did not indicate that they
had been entered upon the court docket, which is the starting
point for the running of the thirty-day period for filing a
notice of appeal. See Fed. R. App. P. 4(a).
In other words, defendants knew that the court had denied
the post-trial motions on July 12, that the clerk's office had
received and filed the court's orders on that same day, and that
all that remained for the clock to begin running on the period
for taking an appeal was for the clerk's office to perform the
ministerial task of entering a notation onto the docket
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indicating that the post-trial motions had been denied. Yet,
despite this knowledge, defendants did nothing until August 9,
when the secretary of defendants' lead counsel returned from her
vacation. It was only upon her return that defendants first made
an attempt to find out if the orders had been entered on the
docket.
According to the secretary's unsworn statement, she called
the clerk's office "on various occasions" to ascertain if the
orders had been docketed. Though she provided no dates, she
stated that "each time" she called, she was told by unnamed
"clerk's office personnel" that the computer system was down.1
Faced with what should have been the alarming prospect that, if
the clerk's office had docketed the orders on the day it received
them, the time to appeal would expire August 12, defense counsel
did nothing more than have his secretary continue her
unsuccessful attempts. It was not until August 16 that she was
told that the orders had been docketed. Still, defense counsel
did not think to inquire when the orders had been docketed.
Instead, upon learning that the orders had been entered, he
assumed that he would receive written notice from the clerk's
office advising him of the date of their entry, and took no
further steps to learn this crucial fact himself.
It was only during a chance telephone conversation later on
August 16 that plaintiffs' counsel mentioned to defense counsel
1 She stated that on one occasion she was told by "Nancy" of
the clerk's office to try again the next day.
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that the orders had been entered on July 13. The thirty-day
period had expired. Sometime during the evening of August 18,
defense counsel filed a motion pursuant to Fed. R. App. P.
4(a)(5) requesting an extension of time to file an appeal "on the
grounds of excusable neglect or good cause." The court granted
the motion by margin order, writing only: "For good cause shown
the requested extension of time to file Notice of Appeal is
Granted." Defendants then appealed. Plaintiffs thereafter filed
their cross appeal. See Fed. R. App. P. 4(a)(3).
II. Discussion
Pursuant to Fed. R. Civ. P. 77(d), the clerk of court is
charged with the responsibility of mailing notice of the entry of
court orders and judgments to all non-defaulted parties. But the
Rule itself plainly states that the clerk's failure to do so
"does not affect the time to appeal or relieve or authorize the
court to relieve a party for failure to appeal within the time
allowed, except as permitted in Rule 4(a) of the Federal Rules of
Appellate Procedure." Thus, since lack of receipt of notice of
the entry of the dispositive orders is the basic reason advanced
for defendants' delinquency, we turn to Fed. R. App. P. 4(a).
Before Rule 4(a) was amended in 1991, only one subdivision,
4(a)(5), gave district judges the authority to grant extensions
of time to file appeals. That section provides: "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 original time
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period allowed. Fed. R. App. P. 4(a)(5). Seven courts of
appeals have read this rule to mean that the good cause standard
is applicable only to requests for extensions made before the
expiration of the original period for filing a timely appeal,
while the excusable neglect standard applies if the request is
made afterward. See Pontarelli v. Stone, 930 F.2d 104, 109-10
(1st Cir. 1991) (collecting cases from the Second, Fifth, Sixth,
Seventh, Eighth, Ninth and Eleventh Circuits).2
We have taken a different view. As we first noted almost a
decade ago, Rule 4(a)(5) "expressly recognizes `good cause' as a
basis for extension both before and after the expiration of the
appeal time." Scarpa v. Murphy, 782 F.2d 300, 301 (1st Cir.
1986). Scarpa involved a request for an extension made after the
period had expired, but was occasioned by no "neglect" on the
part of the would-be appellant. Rather, the notice of appeal was
filed late because of delay by the United States Postal Service
in delivering it to court. Thus we said that the extension
should have been granted because there was good cause shown for
its being filed late, rather than any neglect, excusable or
otherwise, by the appellant. Id.
2 These courts have relied heavily upon the advisory
committee note to the 1979 amendment to Rule 4(a)(5) in reaching
this holding. Before 1979, a district court was empowered to
extend the period for filing an appeal only upon a finding of
excusable neglect. The advisory committee wrote that while
excusable neglect "was an appropriate standard in cases in which
the motion is made after the time for filing the notice of appeal
has run, and remains so, it has never fit exactly the situation
in which the appellant seeks an extension before the expiration
of the initial time. In such a case `good cause' . . . seems
more appropriate."
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More recently, in Pontarelli v. Stone, 930 F.2d at 110, we
reiterated that a showing of good cause could justify granting an
extension even if requested after the initial time period had
expired. But we also made clear that the two standards occupy
distinct spheres. The good cause standard, which was added by
the 1979 amendment, "neither displaces nor overlaps the
`excusable neglect' analysis customarily employed under the
earlier rule." Id. Rather, it adds a limited basis for granting
an extension in those circumstances that are "unsuited to
traditional `excusable neglect' analysis." Id. Such
circumstances were found to be present in Scarpa because there
was no "neglect" by the would-be appellant at all, so that it
made no sense to analyze whether the neglect was "excusable."
Such is not the case here. Defendants were put on notice
that the dispositive orders had been signed by the judge and
received by the clerk's office on July 12. By their own choice,
they waited almost the full thirty days, until August 9, before
even attempting to learn when the orders had been docketed. When
telephonic inquiries proved unavailing, they took no further
steps, but simply allowed the time to expire. They presented no
reason for their failure, for example, to send a messenger to
court to look up the relevant date, and we see no "forces beyond
[their] control," id. at 111 -- at least on this record -- that
prevented them from taking this eminently reasonable step. Thus,
under Rule 4(a)(5), it is clear that only excusable neglect,
rather than good cause, could justify granting an extension. See
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Gochis v. Allstate, 16 F.3d 12, 14 (1st Cir. 1994) (where failure
to file timely appeal is due to party's own neglect, rather than
forces beyond party's control, excusable neglect standard
applies). The determination of whether a party's neglect is
excusable "is at bottom an equitable one, taking into account all
of the relevant circumstances surrounding the party's omission."
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership,
113 S. Ct. 1489, 1498 (1993) (giving non-exhaustive list of
relevant factors).3 No such determination having been made, we
must vacate the grant of additional time to file the appeal.
Since plaintiffs' cross appeal was timely only because of the
additional time granted to defendants, see Fed. R. App. P.
4(a)(3), we have jurisdiction over neither party's appeal.
Two observations remain. We already have noted that, before
1991, Rule 4(a)(5) was the sole basis for granting additional
time to appeal. Defendants apparently failed to realize that
Rule 4(a) was amended in 1991 to respond precisely to the
situation in which they found themselves. The new subdivision
provides:
The district court, if it finds (a) that a party entitled to
notice of the entry of a judgment or order did not receive
such notice from the clerk or any party within 21 days of
3 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).
See City of Chanute, Kansas v. Williams Nat. Gas Co., 31 F.3d
1041, 1046 (1994). We may add one further rationale to those
given by the Tenth Circuit for this conclusion: the Pioneer Court
specifically cited conflict among the circuits in interpreting
excusable neglect in Rule 4(a)(5) as a reason for granting
certiorari. Pioneer, 113 S. Ct. at 1494 n.3.
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its entry and (b) that no party would be prejudiced, may,
upon motion filed within 180 days of entry of the judgment
or order or within 7 days of receipt of such notice,
whichever is earlier, reopen the time for appeal.
Fed. R. App. P. 4(a)(6). This section may supply an alternate
basis for the district court to grant defendants additional time
to appeal. Of course, it was not relied upon below, and the
district judge had no occasion to make the requisite fact-
findings. We offer no speculation on whether defendants may now
rely upon this provision or, if so, how the district judge will
find the relevant facts.
Finally, at oral argument we urged the parties to explore
settlement. They did so, to no avail. Now, in the light of this
remand, it seems especially appropriate to renew the suggestion.
Not only is there no guarantee at this juncture that the appeal
(and the cross appeal) can go forward, but we are skeptical that
any appellant would eventually succeed in reversing the judgments
below.
Accordingly, the order granting additional time to file this
appeal is VACATED and the case is REMANDED for proceedings
consistent with this opinion. Costs to plaintiffs.
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