Halicki v. Louisiana Casino Cruises, Inc.

• Decision Date: 01 September 1998
• Docket Number: No. 97-30508,97-30508
• Citation: 151 F.3d 465
• Parties: Mary Carole HALICKI, Plaintiff-Appellant, v. LOUISIANA CASINO CRUISES, INC; Arthur Frank, Defendants, Louisiana Casino Cruises, Inc., d/b/a Casino Rouge Carnival Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 465

151 F.3d 465

41 Fed.R.Serv.3d 999

Mary Carole HALICKI, Plaintiff-Appellant, v. LOUISIANA CASINO CRUISES, INC; Arthur Frank, Defendants Louisiana Casino Cruises, Inc., d/b/a Casino Rouge Carnival Corporation, Defendant-Appellee.

No. 97-30508.

United States Court of Appeals Fifth Circuit.

Sept. 1, 1998.

Stephen Craig Carleton, Timothy Joseph Poche', Simoneaux, Ryan, Carleton & Dunlap, Baton Rouge, LA, for Plaintiff-Appellant.

Murphy J. Foster, III, Matthew M. Courtman, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before JOLLY, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mary Halicki appeals adverse rulings in her lawsuit for employment discrimination. We affirm.

I.

Halicki worked for defendant Louisiana Casino Cruises, Inc., doing business as Casino Rouge, and was terminated. She sued under title VII, claiming that her termination was the result of sex discrimination.

The district court granted Casino Rouge's motion for summary judgment, and entered final judgment on March 5, 1997. Under FED. R.APP. P. 4(a)(1), Halicki had thirty days therefrom in which to file notice of appeal. ¹ She counted on filing a timely motion under FED.R.CIV.P. 59(e), however, which would have the effect of suspending the thirty-day period. See FED. R.APP. P. 4(a)(4)(C).

Halicki's counsel claims that because he received notice of the final judgment by mail, he thought the three-day mail service provisions of FED.R.CIV.P. 6(e) applied to enlarge the ten days he otherwise would have from the entry of final judgment to file a rule 59(e) motion. Apparently unaware that the plain language of the rules, well-settled hornbook law, and every other circuit to address the issue had rejected the applicability of rule 6(e) to rule 59(e), the attorney waited until the tenth day to mail the rule 59(e) motion, causing it to arrive at the district court two days late.

Casino Rouge, in its opposition to the rule 59(e) motion, objected to its untimeliness. Halicki moved for enlargement of time for filing a notice of appeal under FED. R.APP. P. 4(a)(5) because of "excusable neglect" in misconstruing rule 6(e); for, if her rule 59(e) motion was untimely, the thirty-day notice of appeal clock did not toll, and her time to appeal had expired. See Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir. Unit A 1980) (per curiam); FED. R.APP. P. 4(a)(4). Halicki also argued that even if the rule 59(e) motion was untimely, the court should construe it as a FED.R.CIV.P. 60(b) motion for relief from judgment. The district court denied, and Halicki timely appealed, the denial of her rule 59(e), rule 4(a)(5), and rule 60(b) motions.

II.

Rule 6(e), FED.R.CIV.P., provides: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period." (Emphasis added.) "Mere quotation of Rule 6(e) shows why it is inapplicable to Rule 59(e) motions. The period for filing a Rule 59(e) motion does not--in the words of Rule 6(e)--begin with 'service of a notice.' " Derrington-Bey v. District of Columbia Dep't of Corrections, 39 F.3d 1224, 1225 (D.C.Cir.1994). ² Rather, rule 59(e) provides that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." (Emphasis added.)

"Rule 6(e) does not apply to time periods that begin with the filing in court of a judgment or an order. Thus, Rule 6(e) does not apply to the 10-day period that runs from entry of judgment for moving to alter or amend judgment pursuant to Rule 59(e)." 1 JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 6.05, at 6-35 (3d ed.1998) (citations omitted). Under the plain language of the rules, therefore, the district court correctly found that Halicki's rule 59(e) motion was untimely filed two days after the tenth day from entry of judgment.

III.

Halicki argues that even if she misapplied rule 6(e), her construction of the rules in this instance--an issue of first impression in this circuit--should constitute "excusable neglect" under rule 4(a)(5). Thus, she argues, the district court should have granted her an extension to file a notice of appeal on the underlying summary judgment.

Rule 4(a)(5) 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 time prescribed by this Rule 4(a)." Accordingly, we face three issues: (1) what the correct standard is for the evaluation of "excusable neglect"; (2) whether the court employed the correct standard in evaluating "excusable neglect"; and (3) whether, if the court used the correct standard, it reached a tenable result.

In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Court interpreted "excusable neglect" in the context of the bankruptcy rules. It stated:

Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable," we conclude that the determination is at bottom an equitable one, taking account all of the relevant circumstances surrounding the party's omission. These include ... the danger of prejudice to the [non-moving party], 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. 1489.

We have adopted the Pioneer standard of "excusable neglect" for purposes of FED. R.APP. P. 4(b), which governs criminal matters. See United States v. Clark, 51 F.3d 42, 43-44 (5th Cir.1995). Like rule 4(a)(5), rule 4(b) provides that "[u]pon a showing of excusable neglect, the district court may ... extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision."

In Clark, defense counsel, not unlike Halicki's attorney, misconstrued the federal criminal rules and their applicability to the amount of time the defendant had to file his notice of appeal. See Clark, 51 F.3d at 42-43. The district court found that our caselaw interpreting FED. R.APP. P. 4 prohibited such conduct from ever constituting "excusable neglect." See id. at 43. On appeal, we disagreed, holding that the intervening decision in Pioneer abrogated our previous caselaw stringently construing "excusable neglect" in rule 4(b). We noted that under the new, more liberal Pioneer standard, the district court could--in its discretion--find that Clark's attorney's misreading of the rule constituted "excusable neglect." See id. at 44.

We specifically declined, however, to order the district court, on remand, to find that counsel's conduct must constitute "excusable neglect." See id. ("[W]e do not hold that it would be an abuse of discretion for the district court, on remand, to find no excusable neglect on these facts."). Indeed, we noted, from Pioneer, that a misconstruction of the rules--especially when their language is plain--will rarely satisfy the "excusable neglect" standard. See Pioneer, 507 U.S. at 392, 113 S.Ct. 1489 ("[I]gnorance of the rules [and] mistakes construing the rules do not usually constitute 'excusable' neglect."); see also Clark, 51 F.3d at 44 (noting the same in the context of that case).

We first must determine whether the reasoning in Clark applies, as well, to rule 4(a)(5)--that is, to civil cases. Although we could make distinctions between the civil and criminal spheres, the argument for applying the Pioneer interpretation to the civil context is fairly conclusive.

First, both rule 4(a)(5) and rule 4(b) use "excusable neglect" as the standard for an extension of the time for filing a notice of appeal. We are mindful of the "basic canon of statutory construction that identical terms within an Act bear the same meaning." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) (citations omitted).

Second, the Pioneer Court's construction of "excusable neglect" was apparently generally applicable, as the Court claimed to be adopting "the commonly accepted meaning of the phrase." Pioneer, 507 U.S. at 391, 113 S.Ct. 1489. For this reason, courts of appeals have readily found the standard applicable to rule 4(a)(5), see, e.g., Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th Cir.1996), as well as to rule 4(b), see Clark, 51 F.3d at 43-44.

Finally, Pioneer was a civil bankruptcy proceeding, in which the Court noted that the circuits "similarly have divided" over the term of "excusable neglect" in the context of rule 4(a)(5). See Pioneer, 507 U.S. at 387 n. 3, 113 S.Ct. 1489. We therefore read the Court's opinion, by its own terms, to cover this issue. ³

Proceeding under the Pioneer standard, we face the harder question of how the district court made its "excusable neglect" inquiry. That is, we must decide whether it used the Pioneer standard, or instead employed the older, more stringent metric in making its "excusable neglect" determination. If we conclude that the court used the Pioneer standard, we must then decide whether it did so correctly.

Halicki does not appear to have proffered any standard of "excusable neglect" to the district court. Instead, she argued there, as here, that Pioneer and Clark hold that misconstruction of procedural rules necessarily should result in a finding of "excusable neglect" where no prejudice results to the opposing party. The court correctly disagreed with this proposition, see Pioneer, 507 U.S. at 392, 113 S.Ct. 1489, and without discussing its...