Pincay v. Andrews, 02-56577.

• Citation: 351 F.3d 947
• Decision Date: 10 December 2003
• Docket Number: No. 02-56577.,02-56577.
• Parties: Laffit PINCAY, Jr.; Christopher J. McCarron, Plaintiffs-Appellants, v. Vincent S. ANDREWS; Robert Andrews; Vincent Andrews Management Corp., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

351 F.3d 947

Laffit PINCAY, Jr.; Christopher J. McCarron, Plaintiffs-Appellants, v. Vincent S. ANDREWS; Robert Andrews; Vincent Andrews Management Corp., Defendants-Appellees.

No. 02-56577.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 2003 — Pasadena, California.

Filed December 10, 2003.

Neil Papiano, Los Angeles, California, for the plaintiffs-appellants.

David Boies, Armonk, New York, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; William Matthew Byrne, Senior Judge, Presiding. D.C. Nos. CV-89-01445-WMB, CV-89-04965-WMB.

Before: John T. NOONAN, Andrew J. KLEINFELD, and Kim McLane WARDLAW, Circuit Judges.

OPINION

NOONAN, Circuit Judge.

Lafitt Pincay, Jr. and Christopher J. McCarron ("Pincay") appeal the order of the district court retroactively extending the time in which Vincent S. Andrews, Robert L. Andrews, and Vincent Andrews Management Corp. ("Andrews") might appeal from an adverse judgment of the district court. Holding that the district court made a mistake of law, we reverse the order of the district court.

PROCEEDINGS

In litigation that began in 1989, Pincay sued Andrews for financial injuries in violation of RICO and California law. In 1992, a jury returned verdicts in Pincay's favor on both the RICO and California counts. Pincay was ordered to elect one remedy or the other; he chose the RICO judgment. On appeal, this judgment was reversed on the basis of the federal statute of limitations. Pincay v. Andrews, 238 F.3d 1106 (9th Cir.2001). On remand, Pincay elected the state remedy. Judgment was entered in his favor on July 3, 2002.

On July 10, the nonlawyer calendaring clerk in the large law firm representing Andrews faxed the lawyer supervising the case a copy of the judgment. This lawyer was not in the office, and an exchange of e-mails resulted:

Lawyer to calendaring clerk:

PS what's going on with that Andrews judgment? Was there a proposed form of judgment submitted that we missed? Don't we get a chance to object? And when does our time run to notice the appeal? I know you're out today, but please call on Friday to discuss.

Calendaring clerk to lawyer:

As for Andrews, a proposed judgment was served and filed on 10/11/01. We have it in our files. I'll have to check to see if we objected, but I don't see anything. I'll check our motion papers on their motion for entry of judgment. According to FRAP rule 4, we get 60 days from date of entry of judgment, which was 7/3/02. 60 days would run us to 9/1, which is a Sunday. So 9/2 would be the last date to file a Notice of Appeal.

To this message, the clerk added:

Oops, September 2 is Labor Day, so make it Sept. 3.

Lawyer to calendaring clerk:

To be safe, let's calendar it for the Thursday before Labor Day [i.e., August 29].

The clerk replied he had done so. According to the lawyer's declaration in this case, he "later confirmed that the accelerated deadline was on the calendar."

On August 22, the lawyer received a message from counsel acting for Andrews in his bankruptcy case in Connecticut. The message informed him that Pincay, a claimant in the bankruptcy, had filed a notice that the California judgment against Andrews was final as the appeal period had expired. On August 25, Andrews filed notice of a motion for an extension of time in which to file an appeal from the judgment of July 3. As the district court put Andrews' argument, "Defense counsel explains that he relied on the calendar clerk at his law firm to calculate the deadline, and the clerk made a mistake." Andrews contended that this mistake constituted "excusable neglect."

On August 27, Andrews filed his appeal. On August 30, the district court found Andrews' appeal to have been delayed by excusable neglect and granted the motion to extend so that the August 27 notice of appeal became timely.

Pincay appeals the order extending the time.

ANALYSIS

The Federal Rules of Appellate Procedure provide:

Rule 4. Appeal as of Right — When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

Under the rule, Andrews' appeal should have been filed by August 2 and was in fact 25 days late.

Section (a)(5) of Rule 4, however, provides as follows:

(5) Motion for Extension of Time.

(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 4(a) expires; and

(ii) ... that party shows excusable neglect or good cause.

Andrews' counsel did not show good cause for his failure to file on time, nor can his action be classified as excusable neglect. What counsel did was to delegate a professional task to a nonprofessional to perform. Knowledge of the law is a lawyer's stock in trade. Bureaucratization of the law such that the lawyer can turn over to nonlawyers the lawyer's knowledge of the law is not acceptable for our profession.

Authoritative guidance as to the meaning of "neglect" has been provided by the Supreme Court construing a bankruptcy rule permitting late filing on a showing of excusable neglect. The Court stated:

The ordinary meaning of "neglect" is "to give little attention or respect" to a matter, or, closer to the point for our purposes, "to leave undone or unattended to esp[ecially] through carelessness." Webster's Ninth New Collegiate Dictionary 791 (1983) (emphasis added). The word therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.... 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.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Commenting further on "excusable neglect" in Fed.R.Civ.P. 6(b), the Court added:

Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable" neglect, it is clear that "excusable neglect" under rule 6(b) is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant.

Id. at 392, 113 S.Ct. 1489 (footnote omitted).

In Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir.1994), we considered "excusable neglect" in Fed.R.Civ.P. 6(e) in a case where a motion for attorneys' fees was 2 days late and the district court had found excusable neglect because the plaintiff's attorney had misinterpreted a local rule to incorporate a federal rule of procedure. We found the misinterpretation of the rules to be an inexcusable mistake of law and reversed the district court. We said:

Although the Court in Pioneer recognized that "excusable neglect" is a flexible, equitable concept, the Court also reminded us that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect." Pioneer, 507 U.S. at [392], 113 S.Ct. at 1496.

Id. at 931.

In Marx v. Loral Corp., 87 F.3d 1049 (9th Cir.1996), we considered excusable neglect under Fed. R.App. P. 4(a)(5). The district court found excusable neglect in plaintiffs' counsel encountering difficulties in arranging a meeting with the class of plaintiffs they represented. The appeal had been filed one day late. The appellees argued "somewhat persuasively" that the delay was due solely "to the attorney's calendaring miscalculation." Id. at 1054. We did not decide what caused the delay but simply stated that "this court cannot reverse the district court's ruling unless it has a definite and firm conviction that the lower court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Id. at 1054. As we were in doubt, and not definitely and firmly convinced of the calendaring error, we affirmed the district court.

In Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997), we held that a pro se plaintiff's opposition, 3 months late, to a motion to dismiss, might be due to excusable neglect and that relief would not be summarily denied; we reversed the district court's denial of relief and remanded.

In Bateman v. United States Postal Serv., 231 F.3d 1220 (9th Cir.2000), we considered "excusable neglect" under Fed. R.Civ.P. 60(b)(1). A former employee of the Postal Service was suing his employer. He was represented by a lawyer who on August 10 left the country to attend to a family emergency in Lagos, Nigeria, returning August 29. Informed that the lawyer was going to be away, the Postal Service filed a motion for summary judgment on August 7. The deadline for filing a response was August 21. No response was made by the lawyer absent in Nigeria. On August 28, the Postal Service, not mentioning its knowledge of the lawyer's absence, moved for judgment on its unopposed motion. The motion was granted on September 3. The district court refused to relieve the plaintiff of the judgment on the grounds of excusable neglect by the lawyer. Stressing the failure of the district court to consider the equitable factors enumerated by the Supreme Court in Pioneer, we made the equitable analysis ourselves and found the lawyer's neglect excusable because of the lack of prejudice to the Postal Service and the small impact of the delay on the judicial system. Id. at 1225.

As he did in the district court, Andrews focuses on the mistake made by the calendaring clerk — an unexplained aberration by a man experienced in court procedures. The lawyer's only excuse is that he relied on this non-lawyer clerk. But this focus is wrong. The focus must be on the lawyer....