999 F.2d 1257 (8th Cir. 1993), 92-1769, Metropolitan Federal Bank of Iowa, F.S.B. v. W.R. Grace & Co.

Docket Nº:92-1769, 92-1807, 92-2181, 92-2329.
Citation:999 F.2d 1257
Party Name:METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellant, Metropolitan Federal Bank of Minnesota, F.S.B.; Metropolitan Federal Bank, F.S.B., Plaintiffs, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees, United States Gypsum Corporation, Defendant. METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellee, Metropolitan Fe
Case Date:July 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1257

999 F.2d 1257 (8th Cir. 1993)

METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellant,

Metropolitan Federal Bank of Minnesota, F.S.B.;

Metropolitan Federal Bank, F.S.B., Plaintiffs,

v.

W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees,

United States Gypsum Corporation, Defendant.

METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellee,

Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee,

Metropolitan Federal Bank, F.S.B., Plaintiff,

v.

W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants,

United States Gypsum Corporation, Defendant.

METROPOLITAN FEDERAL BANK OF IOWA, Plaintiff,

Metropolitan Federal Bank of Minnesota, Plaintiff-Appellant,

Metropolitan Federal Bank, Plaintiff,

v.

W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees,

United States Gypsum Corporation, Defendant.

METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff,

Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee,

Metropolitan Federal Bank, F.S.B., Plaintiff,

v.

W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants,

United States Gypsum Corporation, Defendant.

Nos. 92-1769, 92-1807, 92-2181, 92-2329.

United States Court of Appeals, Eighth Circuit

July 27, 1993

Submitted Feb. 19, 1993.

Rehearing Denied Sept. 8, 1993.

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Page 1259

Daniel A. Speights, Hampton, SC, argued (Steven C. Lian, Minot, ND, and Jon M. Arntson, Fargo, ND, on brief), for appellant.

Kell M. Damsgaard, Philadelphia, PA, argued (Dennis J. Valenza of Philadelphia, PA, and Sandra Wallace Napolitano, Thomas B. Caswell, and Brooks F. Poley, Minneapolis, MN, on brief), for appellee, U.S. Gypsum.

Allen W. Hinderaker, Minneapolis, MN, argued (Hugh V. Plunkett, III, and Keith J. Halleland, on brief), for appellee, W.R. Grace & Co.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Metropolitan Federal Bank of Minnesota appeals the decision of the District Court 1 to grant summary judgment to W.R. Grace & Company and W.R. Grace & Company--Connecticut 2 (collectively W.R. Grace) on Metropolitan's claims for recovery of asbestos abatement costs. W.R. Grace cross-appeals, challenging the District Court's decision to extend the time to file the notice of appeal and the decision to grant Metropolitan's motion for voluntary dismissal of the claims related to buildings located in states other than Minnesota. We affirm.

We first address W.R. Grace's contention that we should dismiss this appeal for lack of jurisdiction. The District Court granted summary judgment in favor of W.R. Grace on February 28, 1992. 793 F.Supp. 205. On March 27, 1992, Metropolitan filed a notice of appeal for "Metropolitan Federal Bank of Iowa, et al." On April 14, 1992, the erroneous party name having been brought to Metropolitan's attention by the Clerk of this Court on April 8, Metropolitan filed an amended notice of appeal correctly naming Metropolitan Federal Bank of Minnesota as appellant, together with a motion for extension of time to file a notice of appeal. Metropolitan's motion was made pursuant to Federal Rule of Appellate Procedure 4(a)(5), which reads in part: "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" for filing a notice of appeal. Because this motion was filed after the original thirty days time for notice of appeal had passed, Metropolitan was required to show excusable neglect rather than mere good cause. See Bartunek v. Bubak, 941 F.2d 726, 728 (8th Cir.1991). The District Court found "that any error in the original Notice was the result of excusable neglect," and granted the motion. Order of May 8, 1992.

The decision whether to grant such a motion is entrusted to the district court by rule, and we will reverse only if we conclude the district court abused its discretion in finding excusable neglect. See Vogelsang v. Patterson Dental Co., 904 F.2d 427, 431 (8th Cir.1990).

W.R. Grace first argues that the misnomer because of clerical error rendered the first notice of appeal out of compliance with Federal Rule of Appellate Procedure 3(c), and therefore the need for an extension of time to file a notice of appeal could not be the result of excusable neglect. W.R. Grace relies on a Supreme Court opinion as support for this

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proposed per se rule. In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the Court affirmed final dismissal of Torres's claim because of his failure to timely appeal. Torres's name was omitted from the list of appellants because of a clerical error, but at no time did Torres file a motion pursuant to Federal Rule of Appellate Procedure 4(a)(5) to amend the notice. Thus the Court never reached the question of whether that error was excusable neglect, and so Torres does not set forth, as W.R. Grace suggests, a per se rule that noncompliance with Rule 3(c) as a result of clerical error can never be excusable neglect.

Ordinarily, excusable neglect under Rule 4(a)(5) is found, and an extension of time to file a notice of appeal is appropriate, when the appealing party...

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