Rivard v. State

• Citation: 2023 Vt Super 102603
• Docket Number: 23-CV-01280
• Decision Date: 26 October 2023
• Parties: Jeffrey Rivard v. State of Vermont et al.
• Court: Superior Court of Vermont

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2023 Vt Super 102603

Jeffrey Rivard
v.
State of Vermont et al.

No. 23-CV-01280

Superior Court of Vermont, Civil Division, Bennington Unit

October 26, 2023

ENTRY REGARDING MOTION

David Barra, Superior Court Judge

Title: Motion for Interlocutory Appeal; Motion to Extend Time to File Appeal; (Motion: 14; 15)

Filer: Jeffrey M Rivard; Jeffrey M Rivard Filed

Date: October 05, 2023; October 07, 2023

Plaintiff Jeffrey Rivard filed two related motions. The first is a motion requesting permission for interlocutory appeal of this court's decision denying two of Plaintiff s motions for joinder. The second is a motion requesting more time to file an interlocutory appeal. Defendants oppose both motions. Plaintiff s motion for permission for interlocutory appeal is DENIED. Plaintiff s motion requesting more time to file an interlocutory appeal is DENIED.

I. Procedural History

On August 6, 2023, Plaintiff filed two almost identical motions titled "Motion to Enjoin." See both "Motion[s] to Enjoin" dated August 6, 2023. Although Plaintiff never explicitly stated, nor was it immediately apparent to the court under which rule he sought to proceed, the court ultimately interpreted Plaintiff to be requesting joinder of persons needed for just adjudication pursuant to V.R.C.P. 19(a). It appeared that Plaintiff was requesting that the court join the present docket with three other matters where he is the plaintiff pending in the Superior Court. On September 6, 2023, this court denied those motions for failing to state sufficient grounds required by Rule 19 and failing to abide by requirements for motions contained in Rule 7. Entry Regarding Motion dated September 6, 2023.

On October 5, 2023, Plaintiff filed a motion pursuant to V.R.A.P. 5(b), requesting permission for interlocutory appeal of this court's decision denying Plaintiff s motions for joinder. Plaintiff s Motion Request Permission for Interlocutory Appeal. To support the motion, Plaintiff states that the court's decision denying joinder was "erroneous," and that these matters should be joined because negligence is the basis of claim in each of the dockets. Id. at 1 and 4.

On October 7, 2023, Plaintiff filed a motion requesting an extension of the statutory time limit to file interlocutory appeal. Plaintiff s Request Time to File Extension. In this motion, Plaintiff concedes that he missed the window for an appeal in his motion requesting interlocutory appeal. However, he maintains that his untimeliness should be excused. See Id. at 2-12.

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II. Motion to Extend the Time to File an Interlocutory Appeal Due to Excusable Neglect

Plaintiff states in his motion to extend the time to file that he is aware that his motion requesting permission for an interlocutory appeal was untimely. Plaintiff's Request Time to File Extension at 1-2. However, Plaintiff seemingly looks to V.R.C.P. 6(b)(1)(B) and 60(b)(1) to suggest that his untimeliness was due to excusable neglect, and as such, it should be excused.^[1] In other words, Plaintiff believes this court should extend the statutory time limit to file an interlocutory appeal in his case. Throughout the motion, Plaintiff points to various life events that, according to him, constitute excusable neglect and serve to exempt him from abiding by the time limit in Rule 5(b)(5)(B). There is no explicit rule permitting the court to extend the time to file a motion pursuant to V.R.A.P 5(b) due to excusable neglect. However, to the extent that Plaintiff is presenting a novel argument, seeking to extend the excusable neglect doctrine as grounds for enlarging the time period to file an interlocutory appeal pursuant to V.R.C.P. 5, the court will explain below that, Plaintiff's stated reasons for untimeliness would not constitute excusable neglect.

The Vermont Supreme Court applies federal case law as persuasive authority to clarify the excusable neglect standard, specifically under V.R.A.P. 4, because the rule is substantially identical to Fed. R.App. P. 4. In re Town of Killington, 2003 VT 87A, ¶ 16, 176 Vt. 60. In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392 (1993), the United States Supreme Court described the excusable neglect standard as a "strict one." Its approach was discussed, although not expressly adopted, by the Vermont Supreme Court in Killington, 2003 VT 87A, ¶ 16.

In Pioneer, the Court enunciated factors for evaluating a party's claim of excusable neglect under a number of federal rules, including Fed. R.App. P. 4. These factors include: "the danger of prejudice to the [nonmovant], 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. While this standard ostensibly represents a modest liberalization of the "excusable neglect" concept in the federal rules several federal circuit courts of appeal have recognized that the post-Pioneer threshold remains high

Killington, 2003 VT 87A, ¶ 16 (citation omitted). The Killington Court also noted that "[d]espite the existence of a four-factor [Pioneer] test, the appropriate focus is on the third factor: the reason for delay, including whether it was within the reasonable control of the movant." Id. Federal courts also emphasize the third factor because, "[i]n the typical case, the first two Pioneer factors will favor the moving party: delay always will be minimal in actual if not relative terms, and the prejudice to the non-movant will often be negligible ...." Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003). Moreover, the absence of good faith in these cases is rarely an issue. Id.

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Many federal courts have taken a hard line when determining if neglect stemming from factors wholly within the control of a party or its attorney is "excusable." See e.g., United States v. Hooper, 43 F.3d 26, 28-29 (2d Cir. 1994) (per curiam) (affirming denial of Federal Rule 4(b) extension where delay resulted from legal assistant's ignorance of the rules); see also Graphic Communications Int'l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 8 (1st Cir. 2001) (affirming denial of an extension because late filing was result of ignorance of the law and "inattention to detail"). Vermont courts also follow this approach. See e.g., Killington, 2003 VT 87A, ¶ 19 (inattention to detail is not enough to extend the filing time for appeal); see also In re Lund, 2004 V 55, 177 Vt. 465, 467...