Graphic Communications v. Quebecor Printing

• Citation: 270 F.3d 1
• Decision Date: 31 July 2001
• Docket Number: Nos. 00-2127,s. 00-2127
• Parties: (1st Cir. 2001) GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 12-N AND GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 239-M, Plaintiffs, Appellants, v. QUEBECOR PRINTING PROVIDENCE, INC. AND QUEBECOR PRINTING (USA) CORP., Defendants, Appellees. & 00-2521 Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

270 F.3d 1 (1st Cir. 2001)

GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 12-N AND GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 239-M, Plaintiffs, Appellants, v. QUEBECOR PRINTING PROVIDENCE, INC. AND QUEBECOR PRINTING (USA) CORP., Defendants, Appellees.

Nos. 00-2127 & 00-2521

United States Court of Appeals For the First Circuit

Heard July 31, 2001

Decided October 25, 2001

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge] Peter J. Leff, with whom O'Donnell, Schwartz & Anderson, P.C. were on brief, for appellants.

Russell F. Morris, Jr., with whom Michael S. Moschel and Bass, Berry & Sims PLC were on brief, for appellees.

Before Selya, Circuit Judge, Gibson,^* Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

On December 16, 1998, Quebecor Printing Providence, Inc. and Quebecor Printing (USA) Corp. (collectively, "Quebecor") announced the permanent closure of their gravure printing plant in Providence, Rhode Island, effective that same day. Graphic Communications International Union, Local 12-N and Graphic Communications International Union, Local 239-M ("the Unions") filed a lawsuit in the United States District Court for the District of Rhode Island, claiming that Quebecor had violated the Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. § 2102(a), which requires that employers provide 60 days notice of a plant closing. On July 21, 2000, the district court entered judgment pursuant to a memorandum and order granting Quebecor's motion for summary judgment and denying the Unions' cross-motion for summary judgment. The Unions filed a notice of appeal with the district court on August 22, 2000, one day after the 30-day period for filing the notice of appeal had expired. The Unions then moved for an extension of time to file the notice of appeal due to excusable neglect, and the district court denied their motion. The Unions appeal both the denial of that motion and the district court's disposition of the cross-motions for summary judgment. Because the district court acted within its discretion in rejecting the Unions' motion for an extension of time to file the notice of appeal, we affirm that decision, and do not reach the merits of the Unions' WARN Act claim.

I.

The district court decided the summary judgment motions in favor of Quebecor on the merits of the Unions' WARN Act claims in a memorandum and order issued on July 20, 2000, and the clerk entered judgment the next day. Pursuant to Fed. R. App. P. 4(a)(1)(A), the Unions had until August 21, 2000 to file the notice of appeal.

On Thursday, August 17, Peter J. Leff, the Unions' Washington counsel, sent a notice of appeal and a check for the cost via Express Mail to Marc Gursky, the Unions' Providence counsel. Leff telephoned Gursky, either on August 17 or the day before, to alert him to expect the package. Although it was guaranteed to arrive at its destination the morning of Friday, August 18, the Postal Service did not attempt to deliver the package to Gursky's firm until 7:00 a.m. on Saturday, August 19, when no one was there to sign for it. A second delivery attempt was made at 2:14 p.m. on Monday, August 21, and was successful.

The apparent reason for the Postal Services' failure to deliver the package on Friday, August 18 was an incorrect address on the package. In March of 2000, Gursky's firm had relocated within Providence. In preparing the Express Mail package, however, Leff's office copied the old address off a letter Gursky's firm had written before the move.

When the package did arrive at 2:14 p.m. on Monday, August 21, there was still time (until the end of the day) to file the notice of appeal. A secretary at Gursky's firm, Cheryl Dichiara, received the package, and placed it on her desk with the intention of giving it to Gursky when he returned to the office. Dichiara, who was preparing an arbitration brief for another client that was due the next day, lost track of the package under other documents on her desk, and did not give it to Gursky until August 22.¹ The Unions filed the notice of appeal that same day, and informed Quebecor of the error and of their intention to file a motion for extension of time to file the notice of appeal on the ground of excusable neglect, pursuant to Fed. R. App. P. 4(a)(5) (the motion was filed on August 24). At a hearing before the district court the next month, Gursky indicated that, as of August 21, the deadline for filing the notice of appeal, he believed the period for filing the notice of appeal was 60 days, rather than 30.

II.

Under the Federal Rules of Appellate Procedure, with exceptions not relevant here, the notice of appeal "must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed. R. App. P. 4(a)(1)(A). "The district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule . . . expires; and (ii) that party shows excusable neglect or good cause." Fed. R. App. P. 4(a)(5)(A). The Unions argue that while the late filing was not due to forces beyond their control, any neglect on their part was excusable, and that the district court should therefore have granted an extension.

Our review of the district court's interpretation of Fed. R. App. P. 4(a)(5) is de novo, "but otherwise [we] defer to its denial of the requested extension in the absence of an abuse of discretion." Pontarelli v. Stone, 930 F.2d 104, 109 (1st Cir. 1991) (citations omitted).

Before the Supreme Court's decision in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993), the rule in this circuit was that "[n]eglect is excusable within the meaning of FRAP 4(a)(5) only in unique or extraordinary circumstances." Pontarelli, 930 F.2d at 111 (finding no excusable neglect where notice of appeal failed to specify each party taking appeal, as required under Fed. R. App. P. (3)(c) (internal quotation marks omitted)); see also Rivera v. Puerto Rico Tel. Co., 921 F.2d 393, 396 (1st Cir. 1990) (attorney's failure to list all plaintiffs on notice of appeal "does not constitute excusable neglect for purposes of Rule 4(a)(5) except in unusual or extraordinary circumstances"); Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir. 1978) ("A mistake made by an attorney or his staff [secretary wrote down incorrect deadline for notice of appeal] is not, except in unusual or extraordinary circumstances . . . excusable neglect. . . ."); Spound v. Mohasco Indus., Inc., 534 F.2d 404, 411 (1st Cir. 1976) ("Excusable neglect calls for circumstances that are unique or extraordinary." (internal quotation marks omitted)). We did find excusable neglect in In Re San Juan Dupont Plaza Hotel Fire Litigation, 888 F.2d 940, 941-42 (1st Cir. 1989), but there the circumstances were extraordinary: the failure to name each plaintiff on a notice of appeal stating that "all plaintiffs, through the Plaintiffs' Steering Committee he[re]by appeal," was deemed excusable on the grounds of "the extraordinary size [over 2,000] of the plaintiff group," the representative status of the Plaintiffs' Steering Committee, and the reasonableness of the plaintiffs' filing (which, we suggested, may in fact have complied with Rule (3)(c)). Id. at 942.

In Pioneer the Supreme Court endorsed a more generous reading of the phrase "excusable neglect." The Court interpreted the "excusable neglect" provision in Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure, which "empowers a bankruptcy court to permit a late filing if the movant's failure to comply with an earlier deadline 'was the result of excusable neglect.'"² 507 U.S. at 382. Rejecting what it termed a "narrow view of 'excusable neglect,'" under which the failure to meet a deadline had to be "caused by circumstances beyond the movant's control," the Court advanced "a more flexible analysis." Id. at 387 n.3. The Court observed that the ordinary meaning of the word "neglect" encompasses not just unavoidable omissions, but also negligent ones, and concluded that "Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Id. at 388.

The Court then identified factors to be weighed in evaluating a claim of excusable neglect:

we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.

Id. at 395. Although the excusable neglect provision interpreted in Pioneer was located in the Bankruptcy Rules, the Court cited a disagreement among the circuits on the meaning of "excusable neglect" in Fed. R. App. P. 4(a)(5) as a reason for granting certiorari. See id. at 387 & n.3. In Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d 451 (1st Cir. 1995), we concluded that "Pioneer's exposition of excusable neglect, though made in the context of late bankruptcy filings, applies equally to Fed. R. App. P. 4(a)(5)." Id. at 454 n.3; see also Pratt v. Philbrook, 109 F.3d 18, 19 (1st Cir. 1997) ("Pioneer must be understood to provide guidance outside the bankruptcy context.").

We have recognized that Pioneer marked a shift in the understanding of excusable neglect. In Pratt, we vacated the district court's denial of the plaintiff's motion to reopen a case under Fed R. Civ. P. 60(b)(1), and remanded for reconsideration under the ...