650 Park Ave. Corp. v. McRae

• Decision Date: 08 January 1988
• Citation: 836 F.2d 764
• Parties: 650 PARK AVENUE CORPORATION, Plaintiff-Appellee, v. Maria McRAE, Defendant-Appellant. Docket 87-7951.
• Court: U.S. Court of Appeals — Second Circuit

Page 764

836 F.2d 764

10 Fed.R.Serv.3d 121

650 PARK AVENUE CORPORATION, Plaintiff-Appellee, v. Maria McRAE, Defendant-Appellant.

Docket 87-7951.

United States Court of Appeals Second Circuit.

Submitted Jan. 5, 1988.

Decided Jan. 8, 1988.

Robert S. Churchill, New York City (Gerstein & Churchill, New York City, of counsel), for plaintiff-appellee.

Joseph M. Aronow, New York City, for defendant-appellant.

Before VAN GRAAFEILAND, WINTER and ALTIMARI, Circuit Judges.

WINTER, Circuit Judge:

This motion requires us to address the issue of what constitutes "excusable neglect" justifying a district court's extension of the time in which to file a notice of appeal under Fed.R.App.P. 4(a)(5). Plaintiff 650 Park Avenue Corporation seeks the dismissal of an appeal by defendant Maria McRae from Judge Carter's grant of summary judgment awarding plaintiff damages in the amount of $60,586.50. Although Fed.R.App.P. 4(a)(1) provides, in civil cases not involving the government, that a "notice of appeal ... shall be filed within 30 days after the date of entry of the judgment ... appealed from," McRae failed to file her notice of appeal within the thirty-day period. Instead, fifty-six days after judgment had been entered, McRae filed a motion under Rule 4(a)(5) for an extension of time, arguing that the failure to comply with Rule 4(a)(1) was the result of "excusable neglect." Judge Carter granted the extension. We conclude that the extension constituted an abuse of discretion and dismiss the appeal.

The relevant facts may be briefly stated. The judgment was signed by Judge Carter in the presence of defendant and her attorneys on September 3, 1987 and was filed the same day. Thirty-six days later, on October 9, 1987, plaintiff began efforts to enforce its judgment by filing a motion for an order requiring McRae to surrender her cooperative apartment at 650 Park Avenue in Manhattan. The motion was returnable on October 30 before Judge Carter. On October 29, McRae requested the adjournment of plaintiff's motion and sought an order extending the time in which she could file a notice of appeal. In support of her request for an extension, McRae presented two affidavits. The first, signed by her attorney, Joseph M. Aronow, Esq., reads in pertinent part as follows:

5. On or about September 3, 1987 the defendant Maria McRae instructed me to file a Notice of Appeal to the United States Circuit Court of Appeals.

6. On or about September 23, 1987 the Notice of Appeal was typed in final form by Estelle Moody and executed by me, Exhibit 13. See affidavit of Estelle Moody annexed.

7. Immediately thereafter discussions were entered with the Fidelity & Deposit Company of Maryland to secure a Supersedeas Bond; and with Shearson Lehman Bros. to arrange for collateral for the bond. See letter dated September 29, 1987 to Shearson. (Exhibit 14). Arrangements were made with Shearson to deliver a bearer bond in the amount of $100,000.00 to the Bank of New York as collateral for a Letter of Credit to be issued by the Bank of New York in favor of the Fidelity & Deposit Company of Maryland. After considerable delay on the part of Shearson, the arrangements were completed and Fidelity & Deposit Company issued a Supersedeas Bond, Exhibit 15.

8. In making arrangements for the filing of the Supersedeas Bond, I first discovered that the Notice of Appeal had not been filed as I had directed on September 23, 1987.

9. Ordinarily I use the American Clerical Service to file my papers. Upon inquiry, they informed our office that they have no record of receiving the Notice of Appeal from us or filing with the clerk of the United States District Court. That [sic] there exists excusable inadvertence in the failure to insure the perfection of the filing of a Notice of Appeal within the thirty day statutory period. That [sic] relief as provided in Rule 4(a)(5) of the Federal Rules of Appellate Procedure for the United States Court of Appeals permits for [sic] extension for an additional thirty days for the filing of the Notice [sic] of Appeal with the court's approval.

The second affidavit, that of Estelle Moody, stated in its entirety:

1. I am employed as a secretary in the office of Joseph M. Aronow and make this affidavit in support of defendant's application for an Order to Show Cause in the above-entitled matter.

2. On or about September 23, 1987 I typed the final form of the Notice of Appeal in this action, a copy of which is annexed to the affidavit of Joseph M. Aronow herein. I typed this document from a pencilled draft form prepared by Mr. Charles C. Leutke of our office dated September 3, 1987.

3. Mr. Aronow reviewed the document and signed it in my presence on the date referred to above.

On November 5, 1987, Judge Carter issued an order giving McRae one week to file a notice of appeal. McRae filed her notice of appeal on November 5.

It is important to note that "the requirement of a timely 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) (per curiam) (quoting Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978)). The purpose of the timeliness requirements of Rule 4(a)(1) and its statutory counterpart, 28 U.S.C. Sec. 2107 (1982), ¹ "is to provide a definite point at which, in the absence of a notice of appeal, litigation will come to a close." Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72, 75 (2d Cir.1978); see also In re Orbitec Corp., 520 F.2d 358, 362 (2d Cir.1975). Thus, "the requirements of [Rule] 4(a)(1) and its predecessors with respect to the time for taking an appeal have long been treated as especially rigid." In re O.P.M. Leasing Servs., Inc., 769 F.2d 911, 916 (2d Cir.1985); see also Fase, 574 F.2d at 76.

A seeming exception to this rigidity is Rule 4(a)(5), which provides that:

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). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

Fed.R.App.P. 4(a)(5); cf. 28 U.S.C. Sec. 2107 ("The district court may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree."). "Good cause" is the appropriate standard when the appellant seeks an extension before the end of the first thirty-day period, while "excusable neglect" governs situations "in which the motion is made after the time for filing the appeal has run." Fed.R.App.P. 4(a)(5) advisory committee's note; accord Redfield v. Continental Casualty Co., 818 F.2d 596, 601 (7th Cir.1987); In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). Moreover, although granting an extension under Rule 4(a)(5) is a discretionary act, e.g., Cosmopolitan Aviation, 763 F.2d at 514, that exercise of discretion is subject to certain definite parameters. As Judge Friendly, a member of the advisory committee that drafted the Federal Rules of Appellate Procedure, once observed:

To be sure, in most cases where application for an extension of time is made within the second 30-day period provided in [Rule] 4(a)(5), the court's sympathy will lie with the applicant: the hardship of being denied an appeal is great ... while the hardship to the prospective appellee is usually small. But a loose interpretation of "excusable neglect" would convert the 30-day period for appeal provided in [Rule] 4(a) into a 60-day one--a result clearly not intended by the Rule's framers. Hence, "the burden of demonstrating excusability lies with the party seeking the extension and a mere palpable oversight or administrative failure generally has been held to fall short of the necessary showing...."

O.P.M. Leasing, 769 F.2d at 916-17 (quoting 9 J. Moore & B. Ward, Moore's Federal Practice p 204.13[1.-3], at 4-97 to 4-98 (2d ed. 1985) (footnotes omitted)).

Although oversight or administrative failure by the appellant's attorney do not constitute excusable neglect, relief may be granted when a party's failure to file a timely notice of appeal results from the acts of someone other than the appellant or his or her attorney or from events otherwise beyond their control. See, e.g., Redfield, 818 F.2d at 603 (excusable neglect found where (1) district court clerk failed to send appellant copy of order dismissing complaint; (2) clerk's filing of order under wrong docket number prevented appellant from learning of order by checking docket sheet; and (3) clerk's attachment--within wrong file--of dismissal order to another order issued in another case misled appellant as to date on which dismissal order was filed); Mennen Co. v. Gillette Co., 719 F.2d 568, 569-71 (2d Cir.1983) (clerk error, but one not quite as Byzantine). For example, under certain circumstances, a finding of excusable neglect may be based upon a nonnegligent failure to learn that judgment has been entered, see id. at 571, uncontrollable delays in the delivery of mail, see Scarpa v. Murphy, 782 F.2d 300, 301 (1st Cir.1986) (excusable neglect found where postal service took one week to deliver notice of appeal from post office in West Springfield to district court in Springfield, Mass.), unpredictable events that affect the feasibility of appeal, and plausible...