930 F.2d 104 (1st Cir. 1991), 89-1299, Pontarelli v. Stone

Docket Nº89-1299, 89-1574, 89-1300 and 89-1301.
Citation930 F.2d 104
Party Name, 19 Fed.R.Serv.3d 1029 Trooper Alvin T. PONTARELLI, et al., Plaintiffs, Appellants, v. Walter E. STONE, et al., Defendants, Appellees. Trooper Alvin T. PONTARELLI, et al., Plaintiffs, Appellees, v. Walter E. STONE, et al., Defendants, Appellants. Trooper Alvin T. PONTARELLI, et al., Plaintiff, Appellee, v. Walter E. STONE, Defendant, Appellee, Sta
Case DateApril 18, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 104

930 F.2d 104 (1st Cir. 1991)

, 19 Fed.R.Serv.3d 1029

Trooper Alvin T. PONTARELLI, et al., Plaintiffs, Appellants,

v.

Walter E. STONE, et al., Defendants, Appellees.

Trooper Alvin T. PONTARELLI, et al., Plaintiffs, Appellees,

v.

Walter E. STONE, et al., Defendants, Appellants.

Trooper Alvin T. PONTARELLI, et al., Plaintiff, Appellee,

v.

Walter E. STONE, Defendant, Appellee,

State of Rhode Island, Defendant, Appellant.

Nos. 89-1299, 89-1574, 89-1300 and 89-1301.

United States Court of Appeals, First Circuit

April 18, 1991

Heard April 6, 1991.

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[Copyrighted Material Omitted]

Page 106

Elizabeth A. Rodgers with whom Kehoe, Doyle, Playter & Novick, Boston, Mass., was on briefs, for plaintiff Mary M. Nunes.

Max Wistow with whom Michael H. Feldhuhn, Wistow & Barylick Inc. and Thomas J. McAndrew, Providence, R.I., were on briefs, for defendants Walter E. Stone and Lionel Benjamin.

Joseph V. Cavanagh, Jr., with whom Michael DiBiase and Blish & Cavanagh, Providence, R.I., were on brief, for defendant-appellee Walter T. Reynolds.

Robin E. Feder, Asst. Atty. Gen., with whom James E. O'Neil, Atty. Gen., Providence, R.I., was on brief, for State of R.I.

Before BREYER, Chief Judge, TORRUELLA and CYR, Circuit Judges.

Page 107

CYR, Circuit Judge.

These consolidated appeals mark the finish of a marathon civil action commenced by Rhode Island State Police Lodge 25 ("Union") and five members of the Rhode Island State Police ("State Police") against the State of Rhode Island ("State"), its Attorney General, and various State Police officials, charging sex discrimination and retaliation against women in attendance at the 1985-86 State Police Academy ("Police Academy") and while on active duty with the State Police. The only plaintiff to stay the course throughout the hotly contested district court proceedings was Trooper Mary M. Nunes, who obtained judgment against defendants State, Stone and Benjamin on but one of her several claims--a section 1983 sex discrimination and retaliation claim. Notices of appeal were filed by trial counsel to all plaintiffs, and by defendants State, Stone and Benjamin.

I

BACKGROUND

Trial Court Proceedings

On June 16, 1986, the Union and five of its members, Troopers Pontarelli, Nunes and Lepre, Corporal Ells and Detective Linda Bailey, filed an eight-count complaint against State and four State officials in their individual and official capacities: Arlene Violet, State Attorney General; Walter E. Stone, State Police Superintendent; Lionel Benjamin, State Police Executive Officer; and Walter T. Reynolds, State Police Lieutenant. Plaintiffs asserted sex discrimination and retaliation claims, under 42 U.S.C. Sec. 1983 and title VII, 42 U.S.C. Sec. 2000e et seq., as well as pendent state claims, and demanded legal and equitable relief. The claims of all plaintiffs, except Nunes, eventually were dismissed, with prejudice, and by the time the dust settled in the district court, all defendants had prevailed against all plaintiffs, except for the judgments Nunes obtained against State ($2.00), Stone ($10,002) and Benjamin ($5,002) on her section 1983 sex discrimination and retaliation claims. 1

Appellate Proceedings

These appellate proceedings were initiated on three notices of appeal. The notice of appeal in No. 89-1299 stated that "[p]laintiffs in the above-entitled action" were appealing from "final judgments entered in favor of [d]efendants Violet, State, Reynolds, Stone, and Benjamin." 2 In No. 89-1300, defendants Stone and Benjamin appealed from the judgments entered on the Nunes section 1983 claims. In No. 89-1301, State appealed from the judgment entered on the Nunes section 1983 claim.

We noted apparent lack of appellate jurisdiction in No. 89-1299 due to the omission of the names of the appealing parties from the notice of appeal. See Fed.R.App.P. 3(c). The district court denied the ensuing motion for an extension of time to file a new notice of appeal specifying the names

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of the appellants. See Fed.R.App.P. 4(a)(5) ("FRAP 4(a)(5)"). Plaintiffs' counsel filed a separate notice of appeal, designated No. 89-1574, from the district court order denying the FRAP 4(a)(5) motion, naming as appellants: Pontarelli, Nunes, Ells, Rhode Island State Police Lodge 25, Pendergast and Lepre; that is, the notice of appeal in No. 89-1574 named all original plaintiffs, except Linda Bailey, and added Pendergast. We subsequently granted the motions of Pendergast, Lepre and Pontarelli to dismiss their appeals in Nos. 89-1299 and 89-1574, with prejudice. 3

II

DISCUSSION

Appellate Jurisdiction

Federal Rule of Appellate Procedure 3(c) states:

(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Form 1 in the Appendix of Forms is a suggested form of a notice of appeal. 4 An appeal shall not be dismissed for informality of form or title of the notice of appeal.

Fed.R.App.P. 3(c) (emphasis and footnote added).

The Supreme Court has determined that compliance with the FRAP 3(c) requirement that a notice of appeal "specify the party or parties taking the appeal" is indispensable to appellate jurisdiction. Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-15, 108 S.Ct. 2405, 2407-08, 101 L.Ed.2d 285 (1988). Oakland Scavenger held that the designation "et al." (i.e., "and others") "utterly fails" to satisfy the requirement that a notice of appeal "specify" the party or parties taking the appeal. Id. at 318, 108 S.Ct. at 2409. The notice of appeal in No. 89-1299, captioned "Trooper Alvin T. Pontarelli, et al., v. Walter E. Stone, et al.," read as follows:

NOTICE is hereby given that Plaintiffs in the above-entitled action hereby appeal to the United States Court of Appeals for the First Circuit from the final judgments entered in favor of Defendants Violet, State, Reynolds, Stone, and Benjamin.

A remarkably similar notice of appeal was before us in Gonzalez-Vega v. Hernandez-Colon, 866 F.2d 519 (1st Cir.1989) (per curiam ). 5 We concluded that the notices of appeal in Gonzalez-Vega and Oakland Scavenger were essentially indistinguishable, and we therefore held that only Gonzalez-Vega, whose name was specified in the notice of appeal, had succeeded in establishing appellate jurisdiction. Id. at 520. Similarly, the notice of appeal sub judice in No. 89-1299 is fatally defective under Oakland Scavenger and Gonzalez-Vega, 6 as its designation of the appealing parties differs in no material respect from the designation in Gonzalez-Vega. Accordingly, the notice of appeal in No. 89-1299 did not establish appellate jurisdiction

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on the part of any would-be plaintiff-appellant other than Pontarelli. 7 See also Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 317 (1st Cir.1989) ("plaintiffs" appeal); Santos-Martinez v. Soto-Santiago, 863 F.2d 174, 176 (1st Cir.1988) ("all plaintiffs" appeal). 8

Appeal of Denial of FRAP 4(a)(5) Motion

Within thirty days after the expiration of the thirty-day period prescribed in Fed.R.App.P. 4(a)(1) for lodging an appeal as a matter of right, plaintiffs' trial counsel presented the district court with a motion for an extension of time to file an amended notice of appeal in No. 89-1299. See Fed.R.App.P. 4(a)(5). The district court denied the motion on the grounds that the defect in the notice of appeal was not due to "excusable neglect," and that there was no "good cause" for an extension of time. Pontarelli v. Stone, 713 F.Supp. 525, 529-533 (D.R.I.1989).

We review the district court's interpretation of FRAP 4(a)(5) de novo, see Ramseur v. Beyer, 921 F.2d 504, 506 n. 2 (3d Cir.1990), but otherwise defer to its denial of the requested extension in the absence of an abuse of discretion, id.; Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th Cir.1990); Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir.1969) ("we accord 'great deference' to the district court's ruling on 'excusable neglect' " under FRAP 4(a)) (citation omitted); cf. United States v. Twomey, 845 F.2d 1132, 1134 (1st Cir.1988) (finding of "excusable neglect" under FRAP 4(b) reviewed for abuse of discretion).

Federal Rule of Appellate Procedure 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) [i.e., not later than 30 days after date of entry of the judgment or order appealed from].

Fed.R.App.P. 4(a)(5) (emphasis added). FRAP 4(a) originally empowered the district court to extend the time to file a notice of appeal only upon a showing of "excusable neglect." An advisory committee note explains the 1979 amendment enabling the district court to grant an extension of time upon a showing of "excusable neglect or good cause."

The proposed amended rule expands to some extent the standard for the grant of an extension of time. The present rule requires a "showing of excusable neglect." While this 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," which is the standard that is applied in the granting of other extensions of time under [Federal] Rule [of Appellate Procedure] 26(b) seems to be more appropriate.

Fed.R.App.P. 4(a)(5) advisory committee note to 1979 amendment (emphasis added).

The advisory committee note has been relied upon by the seven regional courts of appeals which adhere to the view that the "good cause" standard is applicable exclusively to FRAP 4(a)(5) motions made during the...

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