Connors v. PRINCETON COAL GROUP, INC.

• Decision Date: 14 August 1991
• Docket Number: Civ. A. No. 1:90-0153.
• Citation: 770 F. Supp. 1140
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Joseph P. CONNORS, Sr., et al., Plaintiffs, v. PRINCETON COAL GROUP, INC., f/k/a Noble Coal Company, Inc.; R & B Mining, Inc.; Bern-Fuel, Inc.; Brittany Company, Inc.; R & J Energy, Inc.; Harman Branch Energy; Robert B. Charles; John L. Sylvester and Donna Charles, Defendants.

770 F. Supp. 1140

Joseph P. CONNORS, Sr., et al., Plaintiffs, v. PRINCETON COAL GROUP, INC., f/k/a Noble Coal Company, Inc.; R & B Mining, Inc.; Bern-Fuel, Inc.; Brittany Company, Inc.; R & J Energy, Inc.; Harman Branch Energy; Robert B. Charles; John L. Sylvester and Donna Charles, Defendants.

Civ. A. No. 1:90-0153.

United States District Court, S.D. West Virginia, at Bluefield.

August 14, 1991.

Susan Cannon-Ryan (Local counsel), Caldwell, Cannon-Ryan & Riffee, Charleston, W.Va., and David Allen, Gen. Counsel, Margaret M. Topps, Assoc. Gen. Counsel, Kenneth M. Johnson, Asst. Gen. Counsel, Stacy A. Hickox, Assoc. Counsel, U.M.W.A. Health & Retirement Funds, Office of the General Counsel, Washington, D.C., for plaintiffs.

Michael F. Gibson, Gibson & McFadden, Princeton, W.Va., for defendants.

MEMORANDUM ORDER

HALLANAN, District Judge.

This matter is before the Court via Defendants' Motion for Leave to File Late Notice of Appeal. Having carefully considered the memoranda and affidavits presented, the Court is prepared to issue its ruling herein.

BACKGROUND

On May 31, 1991 the Court entered an Order advising the parties of its decision to grant Plaintiffs' Motion for Summary Judgment and Motion in Limine "for reasons set forth in an Order to follow." Upon entry of the Order the Court immediately sent a facsimile copy to counsel as the trial date of June 4, 1991 neared. Later that day, Scott A. Ash, Esquire, co-counsel for the Defendants, telephoned the Court to inquire about an Order setting forth the Court's reasons for granting Plaintiffs' dispositive motion. Edward P. Tiffey, Law Clerk to this District Judge, advised Mr. Ash that a memorandum order would be issued shortly. On June 5, 1991 the Court entered a Memorandum Opinion and Order setting forth its reasons for granting Plaintiffs' summary judgment¹ and entering judgment in favor of the Plaintiffs and against the Defendants except Princeton Coal which was in bankruptcy.² That same day the Deputy Clerk in the Bluefield Division recorded the Memorandum Opinion and Order as # 79 on the docket sheet of the instant case with a notation that, inter alia, the Court entered judgment in favor of the Plaintiffs and against the corporate and individual Defendants except Princeton Coal. The notation ends with "cc: counsel of record" which indicates that copies of the document were mailed to counsel of record that day.

On the following day, June 6, Susan Cannon-Ryan, Esquire, counsel for the Plaintiffs, received a copy of the Memorandum Opinion and Order via U.S. mails. However, counsel of record for the Defendants, Michael F. Gibson, Esquire and Mr. Ash, did not receive a copy. The Deputy Clerk in Bluefield believes that one copy was mailed to Mr. Gibson and Mr. Ash³ at their Princeton, West Virginia address appearing on the cover of the docket sheet. Yet in affidavits tendered to the Court, both Mr. Gibson and his secretary, Kathryn C. Richards, state that the law firm of Gibson & McFadden never received a copy of the Memorandum Opinion and Order. The affiants further state that it was not until July 8 or 9 of this year that they first learned of the judgment entered against the Defendants as Defendant John G. Sylvester presented a suggestee execution at their office. On July 10 affiant Richards contacted the Federal Clerk's Office in Bluefield to request a copy of the Order entering judgment. A copy of the Memorandum Opinion and Order was received the next day, July 11. Mr. Gibson advised Mr. Ash of the opinion and entry of judgment on July 12. Later on July 16, the Defendants through counsel filed a motion for leave to file late notice of appeal.

DISCUSSION

The Defendants argue that their failure to timely file a notice was due to mistake, inadvertence or excusable neglect beyond their control. In this connection, Mr. Gibson in his affidavit respectfully submits that it is likely that the copy of the Memorandum Opinion and Order mailed to his office on June 5, 1991 was "lost in the mail."

Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires that the appealing party file a notice of appeal with the clerk of the district court within thirty days after the entry of judgment or order appealed from. Fed.R.App.P. 4(a)(1). However, the district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon a motion filed not later than thirty days after the expiration of the time prescribed by Rule 4(a)(1). Fed.R.App.P. 4(a)(5). Thus, the Defendants had until July 5, 1991 to timely file a notice of appeal of the Memorandum Opinion and Order granting Plaintiffs' Motion for Summary Judgment. The Defendants failed to meet this deadline but may obtain an extension of the thirty-day period provided in Rule 4(a)(1) upon filing the proper Rule 4(a)(5) motion and showing excusable neglect. The Court received the motion contemplated by Rule 4(a)(5) on July 16, 1991. Consequently, the Court is left to determine whether the Defendants have shown excusable neglect that justifies acceptance of their late notice of appeal.

Our...