Airline Pilots in Service of Executive Airlines, Inc., Counsel No. 2, Union of Professional Airmen v. Executive Airlines, Inc., s. 77-1448
| Decision Date | 02 February 1978 |
| Docket Number | 77-1471,Nos. 77-1448,s. 77-1448 |
| Citation | 569 F.2d 1174 |
| Parties | AIRLINE PILOTS IN the SERVICE OF EXECUTIVE AIRLINES, INC., COUNSEL NUMBER 2, UNION OF PROFESSIONAL AIRMEN, Plaintiff, Appellant, v. EXECUTIVE AIRLINES, INC., et al., Defendants, Appellees. AIRLINE PILOTS IN the SERVICE OF EXECUTIVE AIRLINES, INC., COUNSEL NUMBER 2, UNION OF PROFESSIONAL AIRMEN, Plaintiff, Appellee, v. EXECUTIVE AIRLINES, INC., et al., Defendants, Appellees, Air New England, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Loyd M. Starrett, Boston, Mass., with whom Arthur G. Telegen and Foley, Hoag & Eliot, Boston, Mass., were on brief, for plaintiff, appellant, Air New England.
Richard E. Davis, Barre, Vt., with whom David L. Cleary and Richard E. Davis Associates, Inc., Barre, Vt., were on brief, for defendants, appellees, Airline Pilots in the Service of Executive Airlines, Inc., Counsel No. 2, Union of Professional Airmen.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
The sole issue in this case is whether the district court erred as a matter of law in allowing Airline Pilots Union, plaintiff-appellee, to file its Notice of Appeal late pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure. The pertinent portion of the rule reads:
Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
The undisputed facts are these. The Notice of Appeal was dated and mailed on September 2, 1977. It should have been filed in the clerk's office on September 1. The reason given by appellee for the late mailing is that:
Through inadvertence or mistake, a secretary in the employ of plaintiff's attorney diaried the date upon which the appeal period expired as September 11th instead of September 1st. As a result, plaintiff's attorney believed the period expired on September 11th and that mailing the Notice of Appeal on September 2nd would result in the same being received by the office of the Clerk prior to September 11th.
We regard as completely immaterial appellee's argument that the Labor Day weekend resulted in a five day delay for receipt by the clerk of the Notice. The issue here is date of filing of the Notice, not progress of the mails.
Cases from this and other circuits make it clear that a mistake such as this is not excusable neglect within...
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Redfield v. Continental Cas. Corp.
...excusable neglect. See, e.g., State of Oregon v. Champion Int'l Corp., 680 F.2d 1300 (9th Cir.1982); Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.1978); Brainerd v. Beal, 498 F.2d 901 (7th Cir.1974). We find these cases to be neither applicable nor persuasive here. Und......
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Pontarelli v. Stone
...more, "constitute excusable neglect for purposes of Rule 4(a)(5)." Id. (citing Airplane Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (reversing grant of extension where failure to file timely notice of appeal was due to se......
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U.S. v. Ferrer
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Cosmopolitan Aviation Corp., In re
...and unusual situations. State of Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (9th Cir.1982); Airline Pilots v. Executive Airlines, 569 F.2d 1174, 1175 (1st Cir.1978). As a general rule, we accord great deference to a district court's finding of excusable neglect. Fase, 574 F......