Vogelsang v. Patterson Dental Co.

• Decision Date: 11 July 1989
• Docket Number: Civ. No. 4-87-690.
• Citation: 716 F. Supp. 1215
• Parties: Donald A. VOGELSANG, Plaintiff, v. PATTERSON DENTAL CO., a Delaware corporation, and PDA, Inc., a Minnesota corporation, Defendants.
• Court: U.S. District Court — District of Minnesota

716 F. Supp. 1215

Donald A. VOGELSANG, Plaintiff, v. PATTERSON DENTAL CO., a Delaware corporation, and PDA, Inc., a Minnesota corporation, Defendants.

Civ. No. 4-87-690.

United States District Court, D. Minnesota, Fourth Division.

July 11, 1989.

Steve G. Heikens, Minneapolis, Minn., for plaintiff.

Ann Huntrods, Diana Vance-Bryan, Briggs & Morgan, St. Paul, Minn., for defendants.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on plaintiff's motion for an order extending the time in which to file notice of appeal pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Plaintiff's motion will be denied.

FACTS

Plaintiff moves the Court to extend the period in which he may file a notice of appeal beyond the thirty days permitted on the ground that notice was timely mailed, but never received by the Court.

Plaintiff Donald A. Vogelsang sued Patterson Dental Company and PDA, Inc. alleging violations of the Federal Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Defendants' motion for summary judgment was granted and judgment was entered accordingly on February 17, 1989. Vogelsang v. Patterson, CIVIL 487-690 (D.Minn. Feb. 17, 1989). Plaintiff's counsel received copies of the Court's Memorandum and Order on February 22, 1989. Affidavit of Steve G. Heikens par. 4. Plaintiff's counsel alleges that on that same day, February 22, he drafted, signed and dated a notice of appeal indicating his intent to appeal the Vogelsang decision. Heikens Aff. par. 5. Plaintiff's counsel further alleges that on March 13, 1989 he returned from a trip to Florida to find that the notice of appeal had not yet been mailed. Heikens Aff. par. 6. Counsel claims he altered the date of his original notice from February 22 to March 13 and, on March 13, 1989, twenty-four days after judgment was entered, deposited the notice in the United States Mail. Heikens Aff. par. 6; see also Plaintiff's Reply Memorandum at 3.

According to the Court's files, no notice of appeal was received from plaintiff within the prescribed thirty-day period for filing such notice. See Fed.R.App.P. 3, 4. Plaintiff's counsel alleges that on April 14, 1989 he telephoned the United States Court of Appeals for the Eighth Circuit and was informed that no information had been transmitted from the Court regarding the Vogelsang case. Heikens Aff. par. 1. At that point, counsel telephoned the Court and was informed that notice of appeal and the required filing fee had not been received. Heikens Aff. par. 8. On April 14, 1989, fifty-six days after judgment was entered, plaintiff's counsel filed a motion with the Court requesting an extended period in which to file notice of appeal. Defendants oppose plaintiff's motion on the ground that plaintiff failed to file timely notice of appeal and has not demonstrated "excusable neglect."

DISCUSSION

I. Timely Notice of Appeal

The Federal Rules of Appellate Procedure require filing of notice of appeal in civil cases within thirty days after the judgment appealed from is entered. Fed.R. App.P. 3(a), 4(a)(1). The requirement that notice of appeal be timely filed is "mandatory and jurisdictional." Browder v. Director of Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982). Where notice has not been timely filed, a court of appeals is without authority to exercise its jurisdiction. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988); Merrill Lynch, Pierce, Fenner & Smith v. Kurtenbach, 525 F.2d 1179, 1181 (8th Cir. 1975) ("timely filing is a jurisdictional prerequisite for subject matter appellate jurisdiction in the courts of appeal"). The purpose behind this rigid requirement is "the need for the prevailing party to know, at a fixed time, how the litigation stands." In re O.P.M. Leasing Services, Inc., 769 F.2d 911, 916 (2d Cir.1985); see also Selph v. Council of City of Los Angeles, 593 F.2d 881, 882 (9th Cir.1979) ("specific rules for the finality of judgments are essential to maintain order in the judicial process. Rule 4(a) is construed to protect this value ..."); Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72, 75 (2d Cir.1978) ("the purpose is to provide a definite point at which, in the absence of a notice of appeal, litigation will come to a close"). Filing timely notice is crucial to the appeal process and, absent one of the narrow exceptions carved out by Rule 4, failure to file timely notice bars the court of appeals from reviewing the Court's judgment.

Plaintiff's counsel alleges that he mailed notice of appeal to the Court on March 13, 1989, six days before the filing period expired. Heikens Aff. par. 6. However, "simply depositing the notice in the mail is not the same as filing it." Haney v. Mizell Memorial Hospital, 744 F.2d 1467, 1472 (11th Cir.1984); see also Sanchez v. Board of Regents, 625 F.2d 521, 522 (5th Cir.1980) (depositing notice of appeal in the United States Mail is not equivalent to filing notice for purposes of Rule 4(a)(1)). "The controlling date is that on which notice of appeal is filed rather than that on which it is mailed." In the Matter of Bad Bubba Racing Products, Inc., 609 F.2d 815, 816 (5th Cir.1980) (emphasis added). Notice of appeal is "filed" when it is received into the custody and control of the district court clerk. See Ward v. Atlantic Coast Line R. Co., 265 F.2d 75, 80 (5th Cir.1959), rev'd on other grounds, 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960) ("being in the custody of the clerk, notice of appeal met the requirement that it be `actually' received in the clerk's office within the thirty-day period"); accord Hegler v. Board of Education, 447 F.2d 1078 (8th Cir.1971), citing Ward 265 F.2d at 80, with approval. In 1988, the Supreme Court recognized that the rule requiring actual receipt of a notice of appeal has gained wide acceptance:

A large body of lower court authority has rejected the general argument that a notice of appeal is "filed" at the moment it is placed in the mail addressed to the clerk of the court — this on the ground that receipt by the district court is required. To the extent these cases state the general rule in civil appeals, we do not disturb them.

Houston v. Lack, ___ U.S. ___, 108 S.Ct. 2379, 2384, 101 L.Ed.2d 245 (1988) (citations omitted).¹ Based on the foregoing, plaintiff's counsel cannot claim that, for purposes of Rule 4(a), his notice of appeal was timely filed upon mailing.

II. Excusable Neglect

The requirement that notice of appeal be delivered to the district court within thirty days after judgment is entered is mitigated by Rule 4(a)(5), which permits a district court to extend the time for filing notice "upon a showing of excusable neglect or good cause." Fed.R.App.P. 4(a)(5). Prior to 1979, "excusable neglect" was the only mitigating factor expressed in the rule; the words "or good cause" were added by amendment in 1979. The Advisory Committee's Note to Rule 4(a)(5) indicates that the excusable neglect standard "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,' which is the standard that is applied in the granting of other extensions of time under Rule 26(b) seems to be more appropriate." Fed.R.App.P. 4 Advisory Committee's Note. Hence, "`excusable neglect' is the appropriate standard in cases in which the motion is made after the time for filing the notice of appeal has run, while `good cause' is the appropriate standard in cases in which the appellant seeks an extension of time before the expiration of the initial thirty-day period." Redfield v. Continental Casualty Corp., 818 F.2d 596, 601 (7th Cir.1987); accord In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir.1985) ("the good cause standard applies ... prior to the expiration of the initial thirty days. To procure an extension after those first thirty days, the movant must show excusable neglect."). Although the United States Court of Appeals for the First Circuit concluded in Scarpa v. Murphy, 782 F.2d 300 (1st Cir. 1986), that Rule 4(a)(5) "expressly recognizes `good cause' as a basis for extension both before and after the expiration of the appeal time," id. at 301, its opinion did not take into account the Advisory Committee's Note and has not been followed in other circuits. Accordingly, the Court finds that "excusable neglect" is the appropriate standard for it to apply in considering plaintiff's motion for an extended period in which to file notice of appeal.

The standard plaintiff must meet in order to demonstrate "excusable neglect" under Fed.R.App.P. 4(a)(5) is extremely strict. In re O.P.M. Leasing Services, Inc., 769 F.2d 911, 916-17 (2d Cir.1985). Furthermore, the party who moves for an extension of the filing period bears the burden of demonstrating excusable neglect. See Craig v. Garrison, 549 F.2d 306, 307 (4th Cir.1977). Therefore, plaintiff's counsel bears the burden of clearly demonstrating that his failure to file timely notice is attributable to excusable neglect.

The Eighth Circuit has only rarely addressed the question of what constitutes excusable neglect for purposes of filing timely notice. In Benoist v. Brotherhood of Locomotive Engineers, 555 F.2d 671 (8th Cir.1977), the court held that "in general, excusable neglect may be found where a party has failed to learn of an entry of judgment, or in extraordinary cases where injustice would otherwise result." Id. at 672; see also Dugan v. Missouri Neon & Plastic Advertising Co., 472 F.2d 944, 948 (8th Cir.1973) ("the District Court does have the power to grant extensions in extraordinary cases so that injustice may be avoided").² Plaintiffs in Benoist argued that notice of appeal was prepared before the filing deadline, but was mailed one...