Penrod Drilling Co. v. US, Court No. 87-02-00170

• Decision Date: 01 May 1990
• Docket Number: 87-04-00608,87-10-01022 and 87-11-01073.,Court No. 87-02-00170
• Parties: PENROD DRILLING COMPANY, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

740 F. Supp. 858

PENROD DRILLING COMPANY, Plaintiff, v. UNITED STATES, Defendant.

Court Nos. 87-02-00170, 87-04-00608, 87-10-01022 and 87-11-01073.

United States Court of International Trade.

May 1, 1990.

Haight, Gardner, Poor and Havens, John W. McConnell, Jr., Washington, D.C., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, New York City, Attorney-in-Charge, Intern. Trade Field Office, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Barbara M. Epstein, Wantagh, N.Y., for defendant.

OPINION AND ORDER

TSOUCALAS, Judge:

This case is before the Court on plaintiff's motion to set aside the judgment entered herein on December 13, 1989, and to grant rehearing on the grounds that the Court committed manifest errors of law and that the judgment is contrary to law.¹ Plaintiff also has motioned the Court to extend its time to file an appeal of the judgment of December 13, 1989 to the United States Court of Appeals for the Federal Circuit.

I. Motion to Set Aside Judgment and to Grant Rehearing

This Court, having received no response to plaintiff's motions to set aside judgment and to grant rehearing from defendant, issued an order on March 2, 1990, granting a rehearing and scheduling oral argument for March 14, 1990. On March 5, 1990, defendant moved to vacate the order and requested the Court grant defendant's consent motion for leave to file an out of time response to plaintiff's motion on the grounds that the defendant was never served with said motion. On March 7, 1990, this Court granted defendant's motion for leave to file a response out of time but denied the motion to set aside oral argument.

On March 13, 1990, defendant filed its response to plaintiff's motion to set aside the judgment and to grant rehearing. In its response, defendant claimed it had no knowledge of plaintiff's motion until it received the Court's order of March 2, 1990. On the same day, plaintiff notified the Court that, after reading defendant's opposition, it was withdrawing its request for oral argument and asked the Court to decide the motion on the papers.

The judgment in this case was entered on December 13, 1989. On January 11, 1990, plaintiff moved the Court to set aside the judgment and to grant a rehearing. The certificate of service attached to the motion papers filed in this Court indicates that a copy was sent by ordinary mail on January 10, 1990 from the office of plaintiff's counsel in Washington, D.C. to the office of the defendant's counsel in New York City. Defendant, in its response, alleges that it did not receive plaintiff's motion within thirty (30) days of the judgment, as required by Rule 59(b) of the Rules of this Court, and thus the Court lacks jurisdiction over the matter.

It is well established that the decision whether to grant or deny a motion for rehearing is within the sound discretion of the court. Sharp Electronics Corp. v. United States, 14 CIT ___, ___, 729 F.Supp. 1354, 1355 (1990); Channel Master, Div. of Avnet, Inc. v. United States, 11 CIT 876, 877, 674 F.Supp. 872, 873 (1987). Furthermore, Rule 59(a) of the Rules of this Court provides that a rehearing may be granted "for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States." See also St. Regis Paper Co. v. United States, 13 CIT ___, Slip Op. 89-166, 1989 WL 154287 (Dec. 11, 1989).

However, before the Court may consider the sufficiency of the reasons submitted by plaintiff, jurisdiction for the action must exist. Rule 59(b) of the Rules of this Court reads as follows:

(b) TIME FOR MOTION.

A motion for a new trial or rehearing shall be served and filed not later than 30 days after the entry of judgment or order.

(Emphasis added). Defendant claims it was not served with the motion within thirty days after the judgment was issued on December 13, 1989. Defendant's Response to Plaintiff's Motion to Set Aside Judgment and Grant Rehearing ("Defendant's Response") at 4. For plaintiff's motion to have been served timely, it must have been served by January 12, 1990, that is, thirty days from the date that judgment was entered by this Court.

Rule 5(g) of the Rules of this Court states that service of a pleading or paper by mail

is completed when received, except that a pleading or other paper mailed by registered or certified mail properly addressed to the party to be served ... with the proper postage affixed and return receipt requested, shall be deemed served ... as of the date of mailing.

(Emphasis added). This rule was reaffirmed in Belfont Sales Corp. v. United States, 12 CIT ___, 698 F.Supp. 916 (1988), aff'd, 878 F.2d 1413 (Fed.Cir. (T) 1989), where the court held that service of a motion for a rehearing must be received by the opposing party within thirty days of judgment when service is made by ordinary mail, otherwise the court lacks jurisdiction. Id. at ___, 698 F.Supp. at 919. There, the court wrote that, unlike the Federal Rules of Civil Procedure, which state that "service by mail is complete upon mailing," the rule in the Court of International Trade is that service by mail is not complete until receipt by the party to be served, unless certified or registered mail is used. Id. at ___, 698 F.Supp. at 919; see also Fed.R. Civ.P. 5(b).

In the present action, plaintiff's certificate of service indicates that a copy of the motion for rehearing was sent by ordinary mail on January 10, 1990 from Washington, D.C. to New York City. Defendant attests that it did not receive service by January 12, 1990, and indeed, as of March 13th, the motion still had not been received by defendant's office. Defendant's Response at 4. Defendant's office log of incoming mail supports this assertion. Defendant's Exhibit A. Moreover, it is not reasonable to believe that papers mailed via ordinary mail from Washington on January 10th would be received in New York by January 12th.² Plaintiff should have allowed more time for delivery, or used registered or certified mail.

Accordingly, plaintiff's motion to set aside judgment and to grant rehearing is denied on the basis that the Court lacks jurisdiction insofar as defendant was not served within thirty days of judgment, as required by the Rules of this Court.

II. Motion to Extend Time for Appeal

Plaintiff filed a motion to extend its time to file an appeal of the original judgment on March 12, 1990, pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure ("Fed.R.App.P.").³ Plaintiff acknowledges that it did not file its appeal within the required sixty (60) days from judgment, that is, February 12, 1990.⁴ However, plaintiff claims that it is entitled to an extension because of "excusable neglect or good cause" since plaintiff's attorney did not learn of the fact that defendant did not receive plaintiff's initial motions until after the sixty day deadline had expired. Plaintiff's Motion to Extend Time for Appeal.

Plaintiff's motion is based on its argument that since the copy of its motion to set aside judgment and grant rehearing apparently was lost in the mail, it should not be held responsible for its failure to file notice of appeal within sixty days. Penrod argues that it "assumed" the initial motion had been timely served upon defendant and thus that the time to appeal was tolled until that motion was acted on. Plaintiff's Motion to Extend Time for Appeal.

Rule 4(a)(1) of the Fed.R.App.P. requires that a notice of appeal against a judgment where the United States is a party must be filed within sixty (60) days after entry of judgment. In this case, plaintiff's motion to extend time for appeal was filed on March 12, 1990; the deadline for filing was February 12, 1990. Therefore, plaintiff's motion was filed more than sixty days after judgment.

However, Rule 4(a)(1) is subject to an exception for delays in filing due to "excusable neglect or good cause." Fed.R.App.P. 4(a)(5).⁵ Hence, if Penrod can make a clear showing of either, it is entitled to an extension of time to appeal.⁶ Plaintiff's argument is that the delay in mail delivery is what caused its motion to be filed after the sixty day period expired and that this constitutes "excusable neglect or good cause." Plaintiff's Motion to Extend Time for Appeal.

There have been many cases in the federal courts addressing the issue of late filing due to slow mail delivery. In Seneca Grape Juice Corp. v. United States, 61 CCPA 118, 492 F.2d 1235 (1974), our appellate court held that a notice of appeal which was one day late due to unusually slow mail delivery between New York and Washington, D.C. was untimely and had to be dismissed. Id. at 118, 492 F.2d at 1235. In Reinsurance Co. of America, Inc. v. Administratia Asigurarilor de Stat, 808 F.2d 1249 (7th Cir.1987), the court held that appellant was not entitled to an extension where it mailed notice of appeal from New York on December 24th expecting it to arrive in Chicago three days later. The court stated that delays in mail delivery, particularly during holiday seasons, are reasonably foreseeable and "`good cause' is not furnished by blaming the postal service for appellant's inexplicable lack of foresight." Id. at 1253.⁷

Defendant acknowledges that extensions have been granted where "notice is mailed in time so that in normal course it will arrive in time, but it does not." Defendant's Response to Plaintiff's Motion to Extend Time to Appeal at 9, (citing 9 Moore's Federal Practice § 204.13 at 4-105, n. 18). As stated above, however, the Court finds that two days is not sufficient time for mail sent by ordinary mail from Washington, D.C. to arrive in New...