Williams v. Kfc Nat. Management Co.

• Decision Date: 09 December 2004
• Docket Number: Docket No. 03-7309.
• Citation: 391 F.3d 411
• Parties: Wilma WILLIAMS, Plaintiff-Appellant, v. KFC NATIONAL MANAGEMENT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

391 F.3d 411

Wilma WILLIAMS, Plaintiff-Appellant, v. KFC NATIONAL MANAGEMENT COMPANY, Defendant-Appellee.

Docket No. 03-7309.

United States Court of Appeals, Second Circuit.

Argued: January 23, 2004.

Decided: December 9, 2004.

COPYRIGHT MATERIAL OMITTED

Jeffrey P. Falk, Falk & Klebanoff, P.C., West Hempstead, NY, for Plaintiff-Appellant.

Timothy E. Shanley, St. John & Wayne, L.L.C., New York, NY, for Defendant-Appellee.

Before: NEWMAN, CALABRESI, and B.D. PARKER, Circuit Judges.

Judge CALABRESI concurs by separate opinion.

B.D. PARKER, JR., Circuit Judge:

Plaintiff-appellant Wilma Williams appeals from a judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) in favor of KFC National Management Company ("KFC" and formerly known as "Kentucky Fried Chicken") dismissing her personal injury claim. The District Court concluded that Williams failed to raise a material issue of fact as to KFC's responsibility for a sidewalk condition that allegedly caused her to fall and suffer injuries. After Williams's time to appeal expired, she moved for an extension, which was unopposed. The District Court granted the extension. After the appeal was fully briefed in this Court, KFC moved to dismiss it as untimely, contending that the extension was an abuse of discretion. For the reasons that follow, we conclude that in the absence of an objection to the motion for extension of time, we cannot say that the District Court abused its discretion in granting the extension. Accordingly, KFC's motion to dismiss must be denied. Because we also conclude that Williams raised genuine issues of material fact, we vacate the summary judgment and remand for further proceedings.

I. BACKGROUND

The facts considered in the light most favorable to Williams indicate that on September 19, 2000, she was walking down Lafayette Avenue towards Bedford Avenue in Brooklyn, N.Y. The evening was dark, it was raining heavily, and she fell on a section of sidewalk abutting a locked gate that separates the sidewalk from a dumpster storage area located behind a KFC restaurant. According to the assistant manager of the restaurant, about twice a day KFC employees place trash bags filled with refuse such as food containers, food preparation materials, and uneaten food into the dumpster. Overnight, the gate to the dumpster area is left unlocked so that the dumpsters can be removed by refuse carters who drag them through the unlocked gate and across the sidewalk to be emptied into garbage trucks. In the morning, KFC employees drag the dumpsters back over the sidewalk to the storage area.

Williams claims that, after her fall, she discovered grease on her clothes and shoes, and that a police officer who responded to the accident told her she had slipped on grease on the sidewalk. A private investigator retained by Williams returned to the scene two days later, noted that the area was slippery, and took photographs showing discoloration on the stretch of sidewalk where the fall occurred. In addition, the assistant manager testified that on the date in question, the area where the dumpster was located was dirty, and that the garbage bags broke on occasion.

Williams sued KFC in New York state court, and KFC removed to federal court. In her complaint, Williams alleged that twice a day KFC rolled its dumpster across the stretch of sidewalk where she fell, that grease leaked out of the garbage bags and the dumpster, causing slippery conditions on the sidewalk, and that these slippery conditions caused her fall and her injuries. Her alternate theory of liability was that since KFC made "special use" of the sidewalk, under New York law it had actual or constructive knowledge of, and responsibility for, the dangerous condition, even if she had not proved that KFC affirmatively caused it.

After discovery, KFC moved for summary judgment, which the District Court granted. The Court concluded that, although Williams had raised a genuine issue of material fact as to the existence of grease on the sidewalk, she had raised none as to KFC's responsibility for the grease, finding Williams contentions in this regard too speculative. The Court also concluded that Williams had failed to establish that KFC was liable as a consequence of any "special use" of the sidewalk.

Judgment was entered on January 31, 2003, but Williams failed to appeal within the 30 days allowed by the Federal Rules of Appellate Procedure. See Fed. R.App. P. 4(a)(1)(A). Rather, on March 26, she moved for an extension of time to file the appeal. See Fed. R.App. P. 4(a)(5). KFC received the motion on March 27 but failed to oppose it. The District Court granted the motion and Williams filed her notice of appeal on March 31. Months later, on November 19, after appellate briefing had been completed, KFC moved to dismiss the appeal for lack of jurisdiction because of Williams's late filing. We reserved decision. We now deny KFC's motion to dismiss and, reaching the merits, conclude that Williams raised a genuine issue of material fact as to KFC's responsibility for the accident. We therefore vacate the judgment and remand for further proceedings.

II. DISCUSSION

A. Appellate Jurisdiction

Under Rule 4(a), a notice of appeal in a civil case must be filed within 30 days after entry of judgement. Fed. R.App. P. 4(a)(1)(A). The district court may extend that time period if (i) a party moves for the extension no later than 30 days after the time prescribed by Rule 4(a) expires and (ii) the moving party establishes excusable neglect or good cause. Fed. R.App. P. 4(a)(5).

Compliance with Rule 4(a) is "mandatory and jurisdictional." Browder v. Director, Dep't of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir.2003). This Court has previously explained that "[t]he power of the federal courts to extend this time limitation is severely circumscribed." Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir.1997). We review for abuse of discretion a district court's decision to grant or deny an extension of time to file a notice of appeal, but if an appeal is filed outside the time limitations provided in Rule 4(a)(5), we lack jurisdiction. Goode v. Winkler, 252 F.3d 242, 245 (2d Cir.2001).

Williams's motion sought to establish "excusable neglect" solely on the ground that "plaintiff's counsel inadvertently closed plaintiff's case after ... the Court had dismissed her case and the plaintiff failed to instruct [her counsel] to file a Notice of Appeal" and that "plaintiff, recently, on March 21, 2003, contacted [her counsel] and indicated that she wanted [counsel] to file a Notice of Appeal herein." Appellant Mot. for Ext. of Time. The motion further contended that Williams had "good cause for the instant appeal" because the evidence demonstrated that "there is a material question of fact concerning the creation of the defect on the defendant's premises that caused plaintiff to fall and sustain injuries." Id. This latter contention was, of course, irrelevant since the appropriate inquiry is not whether the underlying claim has merit, but whether excusable neglect or good cause exists for the failure to file the notice of appeal in a timely manner. As previously noted, none of Williams's excuses were contested and her motion, without opposition, was granted.

The Supreme Court, in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), adopted a liberal test for assessing what neglect is excusable, emphasizing that "the determination is at bottom an equitable one, taking account of all relevant circumstances," including: (1) the danger of prejudice to the non-moving party, (2) the length of delay and impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the moving party, and (4) whether the moving party acted in good faith. Id. at 395, 113 S.Ct. 1489. To be sure, the District Court could readily have concluded that Williams met three aspects of this four-factor test. In the absence of any objection on KFC's part, there is nothing to suggest prejudice to the defendant due to the three-week delay. Further, the District Court was, of course, competent to conclude that the delay did not affect judicial proceedings. Finally, a finding of good faith on Williams's part was warranted given the District Court's familiarity with the case and the lack of any evidence to the contrary adduced by KFC. We have emphasized, however, that it is the third factor-the reason for the delay-that predominates and the other three are significant only in close cases. But we have emphasized this factor solely in cases where the non-moving party made an objection to the validity of the explanation given for the delay. Silivanch, 333 F.3d at 366.

Thus, in Silivanch, we held that it was an abuse of discretion for the lower court to have found reliance on an opposing counsel's erroneous statement about a filing deadline to be "excusable neglect." Id. at 370. We expressed concern that "the legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced" and, in that case, where vigorous opposition to the explanations for the neglect was presented, we reaffirmed that the "`excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules.'" Id. at 368-69 (quoting Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir.1994), and United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994)) (cases in which forfeiture and failure to object were not at issue). KFC argues that our case law compels the conclusion that the District Court's extension was an abuse of discretion because Williams's only reason for her lateness does...