Harlan v. Graybar Electric Co., 23920.
| Citation | 442 F.2d 425 |
| Decision Date | 07 May 1971 |
| Docket Number | No. 23920.,23920. |
| Parties | Emery H. HARLAN, dba East Bay Appliance Sales & Service Co., Appellant, v. GRAYBAR ELECTRIC CO., Inc., Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Minor J. Schmid (argued), Gonick, Schmid & Bernstein, Oakland, Cal., for appellant.
Walter R. Allan (argued), Noble K. Gregory, William I. Edlund of Pillsbury, Madison & Sutro, San Francisco, Cal., for appellee.
Before KOELSCH, CARTER, and HUFSTEDLER, Circuit Judges.
The threshold question, the answer to which is dispositive of this appeal, is whether the facts set out in the affidavits supporting plaintiff-appellant's motion in the District Court to file, out of time, a notice of appeal from the civil judgment entered against him show "excusable neglect" within the meaning of Fed.R.App.P. 4(a).
We agree with the District Court that they do not.
Notice to appellant's counsel of the entry of the judgment constituted notice to appellant; hence, he may not assert that he did not know and therefore that his failure to act was "excusable." Howard v. Local 74, Wood, Wire and Metal Lathers International et al., 208 F.2d 930 (7th Cir. 1953) (). And although the fact that appellant's counsel "misread" the rule to allow sixty not thirty days in which to file the notice does show neglect, it certainly does not make the neglect "excusable."
Affirmed.
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Williams v. U.S., 75-3019
...cert. denied, 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976); Gann v. Smith, 443 F.2d 352 (5th Cir. 1971); Harlan v. Graybar Elec. Co., 442 F.2d 425 (9th Cir. 1971); and Phelps v. United States, 373 F.2d 194 (10th Cir. 1967), there could be some question in that regard.7 See Merrill Lync......
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LBL Sports Center, Inc., In re
...592 F.2d 1028, 1034 (9th Cir. 1979) (counsel's misunderstanding of rules does not constitute excusable neglect); Harlan v. Graybar Electric Co., 442 F.2d 425 (9th Cir. 1971) (counsel's misreading of rule does not constitute excusable neglect).3 The Advisory Committee's Note to Rule 802 stat......
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In re Auto Specialties Mfg. Co.
...Counsel's misreading of the applicable rule may show neglect but does not make the neglect "excusable." Harlan v. Graybar Electric Co., Inc., 442 F.2d 425 (9th Cir.1971); principal counsel's nonreceipt of notice of the trial court's denial of a motion was not excusable neglect, because co-c......
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Feeder Line Towing Service, Inc. v. Toledo, P. & W. R. R. Co., 75-2160
...of "error" is not equivalent to the misreading of rule 4(a) to allow 60 rather than 30 days as was the case in Harlan v. Graybar Electric Company, 442 F.2d 425 (9th Cir. 1971). Rather, it was the type of "error" similar to that in Torockio v. Chamberlain Manufacturing Company, 56 F.R.D. 82,......