United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
LIOI UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff JBlanco
Enterprises (“plaintiff” or
“JBlanco”) for an extension of time to file a
notice of appeal. (Doc. No. 117 [“Mot.”).)
Defendant Soprema Roofing and Waterproofing, Inc.
(“defendant” or “Soprema”) has
opposed the motion (Doc. No. 119 [“Opp'n”]),
to which JBlanco replied (Doc. No. 122
[“Reply”]). For the reasons that follow, the
motion is denied.
November 8, 2016, the Court issued a memorandum opinion and
order granting summary judgment in favor of Soprema and
against JBlanco on JBlanco's complaint and Soprema's
counterclaims. (Doc. No. 101 [“MOO”].) After the
Court ruled on summary judgment, the parties attempted to
reach a global settlement but were unsuccessful. Thereafter,
the Court published the Judgment Entry on January 10, 2017.
(Doc. No. 116 [“JE”].) On February 15, 2017,
JBlanco moved for an extension of time of six (6) days to
file a notice of appeal from the judgment entry.
to the motion, counsel for JBlanco instructed his secretary
on January 31, 2017, to prepare a draft notice of appeal.
Counsel edited the draft and “thought that he returned
it to his secretary for filing.” (Mot. at
2110.) The motion does not state when counsel
attempted to return the notice to his secretary for filing,
and no affidavit from counsel is provided with the motion.
According to the motion, plaintiff's counsel discovered
the appeal was not filed when preparing the notice of
appearance for the appeal. (Id.) “Although
[plaintiff's counsel] has a copy of the Notice of Appeal
on his traveling computer, he was unable to locate any
transmission to his secretary. [Plaintiff's counsel]
believes that the transmission may have been lost during
travel when using unfamiliar Internet connections, but is not
certain.” (Id.) Without citation to any legal
authority, plaintiff seeks an extension of time to file the
notice of appeal, arguing that Soprema was aware of
JBlanco's plan to appeal and a short extension will not
prejudice defendant. (Id.) JBlanco filed the notice
of appeal on the same day the motion was filed. (Doc. No.
Fed. R. App. P. 4
appeal “from a district court to a court of appeals may
be taken only by filing a notice of appeal with the district
clerk within the time allowed by Rule 4.” Fed. R. App.
P. 3(a)(1). “[T]he notice of appeal required by Rule 3
must be filed with the district clerk within 30 days after
entry of the judgment or order appealed from.” Fed. R.
App. P. 4(a)(1)(A). “‘The failure of appellant to
timely file a notice of appeal deprives an appellate court of
jurisdiction.'” Peery v. C.I.R., 610 F.
App'x 566, 567 (6th Cir. 2015) (quoting Rhoden v.
Campbell, 153 F.3d 773, 774 (6th Cir. 1998)); Baker
v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989)
district court may extend the time to file a notice of appeal
if: (i) a party so moves no later than 30 days after the time
prescribed by this Rule 4(a) expires; and (ii) regardless of
whether its motion is filed before or during the 30 days
after the time prescribed by this Rule 4(a) expires, that
party shows excusable neglect or good
cause.” Fed. R. App. P. 4(a)(5)(A). “Good
cause will be found where forces beyond the control of the
[movant] prevented [the] filing of a timely notice of
appeal.” Nicholson v. City of Warren, 467 F.3d
525, 526 (6th Cir. 2006) (citing Mirpuri v. ACT Mfg.,
Inc., 212 F.3d 624, 630 (1st Cir. 2000)). “The
excusable neglect standard applies in situations in which
there is fault; in such situations, the need for an extension
is usually occasioned by something within the control of the
movant.” 16A Fed. Prac. & Proc. Juris. §
3950.3 (4th ed.) (quoting Fed. R. App. P. 4(a)(5)(A)(ii) 2002
advisory committee's notes).
opposes the motion on the grounds that under controlling case
law, plaintiff's failure to timely file the notice of
appeal does not constitute “excusable neglect.”
In order to determine whether neglect is “excusable”
under Fed. R. App. P. 4(1)(5)(A), the Sixth Circuit applies
the four factors articulated by the Supreme Court in
Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd.
P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74
(1993). Proctor v. N. Lakes Cmty. Mental Health, 560
F. App'x 453, 459 (6th Cir. 2014) (citing United
States v. Thompson, 82 F.3d 700 (6th Cir. 1996)).
Determinations of excusable neglect “sound in
equity” and take into account “all relevant
circumstances, ” including: (1) the danger of prejudice
to the non-moving party; (2) the length of the delay and
impact on judicial proceedings; (3) the reason for the delay,
including whether it was within the reasonable control of the
movant; and (4) whether the movant acted in good faith.
See id. (citing Pioneer, 507 U.S. at 395);
Curry v. Eaton Corp., 400 F. App'x 51, 56-57
(6th Cir. 2010) (citing Pioneer, 507 U.S. at 395).
Clients are “‘accountable for the acts and
omissions of their chosen counsel'” with respect
to the timely filing of an appeal. Airline Prof'ls
Ass'n v. ABX Air, Inc., 109 F.Supp.2d 831, 833 (S.D.
Ohio 2000) (quoting Pioneer, 507 U.S. at 396-97;
citing Allen v. Murph, 194 F.3d 722, 724 (6th Cir.
opposing the motion, defendant concedes that it will be only
“mildly prejudiced” if an extension is granted,
and that a delay of 6 days will “not likely impact
judicial proceedings[.]” (Opp'n at 2122.) Defendant
does not contend that the movant acted in bad faith or
dispute that JBlanco's counsel discussed his client's
desire to appeal with Soprema's counsel. (Id.)
Soprema's entire opposition is grounded in the argument
that JBlanco's reason for failing to timely file an
appeal was within plaintiff's reasonable control and does
not constitute excusable neglect. (Id. at 2122-25.)
In support, defendant cites a number of cases denying
extensions of time to appeal for lack of excusable neglect
due to failure of fax and voicemail machines,  miscalculation of
date appeal due,  and attorney's alleged failure to
instruct an assistant to use overnight mail.
argues in reply that all of the Pioneer factors
weigh in its favor except, arguably, the reason for the
delay. But all of the Pioneer factors do not carry
equal weight-“the reason for the delay is the factor
that is the most critical to the excusable neglect
inquiry.” Proctor, 560 F. App'x at 459
(citing United States v. Munoz, 605 F.3d 359, 372
(6th Cir. 2010)). “Should a district court find
excusable neglect, the court must then examine the questions
of prejudice and bad faith; if there is any indication of bad
faith or any evidence of prejudice to the appellee or to
judicial administration, the district court may then choose
to exercise its discretion and deny the requested
extension.” Curry, 400 F. App'x at 57
(citing Thompson, 82 F.3d at 702 (citing
Pioneer, 507 U.S. at 397-98)); see also VanRiper
v. Local 14, Int'l Union United Auto., Aerospace &
Agr. Implement Workers of Am., No. 3:13CV2102, 2015 WL
1291676, at *2 (N.D. Ohio Feb. 23, 2015) (“A party must
first establish excusable neglect; only after such a showing
may the court examine questions of prejudice or bad
faith.”) (citing Thompson, 82 F.3d at 702
(citing Pioneer, 507 U.S. at 397-98)). Even in cases
where there is no prejudice to the non-moving party and the
delay is minimal with almost no impact on judicial
proceedings, a failure to show excusable neglect will still
result in an the denial of a motion to extend time to file an
appeal. See Deym v. von Fragstein, 127 F.3d 1102
(Table) (6th Cir. 1997) (reversing lower court's grant of
5 day extension on the grounds that “loss of a
long-term paralegal assistant, illness of an entrusted
associate, and an extraordinary personal workload” does
not constitute excusable neglect) (citing among other
authorities, Pioneer, 507 U.S. at 389). Thus, the
Court will first analyze plaintiff's reason for failing
to timely file an appeal. Taking into account all the
relevant circumstances, JBlanco argues that its failure to
timely file the notice of appeal is excusable. (Reply at
2135-36 (citing Pioneer, 507 U.S. at 306).) These
circumstances include plaintiff's counsel discussing the
appeal with Soprema's counsel, instructing his secretary
10 days ahead of the deadline to prepare a draft notice of
appeal, instructing his associate to prepare a timeline of
upcoming deadlines for prosecuting the appeal in the Sixth
Circuit, and taking immediate steps to request an extension
upon discovering that the notice was not filed “due to
an apparent transmission error[.]” (Id. at
2137-38.) Plaintiff argues that counsel's mistaken belief
that he transmitted the notice of appeal to his secretary for
filing is factually distinguishable from the cases cited by
defendant because, in this case, plaintiff's counsel
prepared the notice in advance of the filing date but was
unaware of any issues or circumstances that may have
prevented or interfered with the transmission of his email to
his secretary. (Id.) Obviously lacking in
plaintiff's motion and reply is citation to a single
authority where facts similar to those found in this case
were determined to constitute excusable neglect.
travel and time out of the office do not support a showing of
excusable neglect for failure to timely file an appeal.
See Airline Prof'ls, 109 F.Supp.2d at 834.
Neither does counsel's preparation of the notice, and
claimed transmission of the notice to his secretary for
filing, before the deadline. Baker, 879 F.2d at 1399
(excusable neglect not shown where notice was prepared and
mailed within 30 day time period for appeal, but did not
arrive until after the period had expired, and counsel being
in trial is not a “unique and extraordinary”
circumstance and does not address the “obvious
question” of why the appeal was not filed earlier).
JBlanco does not explain ...