
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1589                               WILLIAM GOCHIS, ET AL.,                               Plaintiffs, Appellants,                                          v.                           ALLSTATE INSURANCE CO., ET AL.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this  Court issued on February 10, 1994, is amended        as follows:            Page 3, footnote 3, revised as follows:            Fed.  R. App. P. 3(c) states,  inter alia, that the notice of                                           _____ ____            appeal  "shall  specify  the  party  or  parties  taking  the                            _______            appeal." (emphasis supplied).   We note that Fed.  R. App. P.            3(c) has been  amended effective December 1,  1993.  However,            since  neither  party  has raised  the  applicability  of the            revised rule,  we have not  considered the amendment  in this            appeal.                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1589                               WILLIAM GOCHIS, ET AL.,                               Plaintiffs, Appellants,                                          v.                           ALLSTATE INSURANCE CO., ET AL.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Nelson P.  Lovins with whom Sarah Tucker and Lovins & Metcalf were            _________________           ____________     ________________        on brief for appellants.            James W. Nagle with whom  Robert M. Hale,  Thomas M. Hefferon, and            ______________           _______________   __________________        Goodwin, Procter & Hoar were on brief for appellee.        _______________________                                 ____________________                                  February 10, 1994                                 ____________________                      Per Curiam.   Plaintiffs-appellants William Gochis,                      Per Curiam                      __________            et  al., attempt  to  appeal the  district  court's grant  of            summary judgment in favor of defendant Allstate Insurance Co.            Because plaintiffs' notice of appeal is ineffective, however,            we dismiss for lack of appellate jurisdiction.                                          I.                                          I.                                          __                          Factual and Procedural Background                          Factual and Procedural Background                          _________________________________            A.  The Dispute            A.  The Dispute            _______________                      This case involves  a compensation dispute  between            plaintiffs, seventy-nine former Massachusetts insurance sales            agents  ("Agents"), and  their  employer, defendant  Allstate            Insurance Company ("Allstate").   Agents worked  for Allstate            pursuant to an Agent  Compensation Agreement until  Allstate,            discouraged  by its  inability  to turn  a  profit under  the            Massachusetts  insurance  regime,  ceased  doing business  in            Massachusetts in 1989.                      In September  1990, seventy-six1 of  the plaintiffs            filed a suit against Allstate alleging, inter alia, breach of                                                    _____ ____            the   implied  covenant  of  good  faith  and  fair  dealing.            Allstate moved for summary judgment on two occasions, and the            district court granted both motions.2                                                   ____________________            1.  The remaining three  plaintiffs were added with  leave of            the court on November 25, 1991 and January 16, 1992.            2.  Allstate's  first motion  for  summary judgment,  against            five of the  Agents, was granted in segments  by the district            court in oral  rulings on June 9, 1992 and February 10, 1993,            and  in a February  19, 1993,  written decision.   Allstate's                                         -2-                                          2            B.  Jurisdictional Chaos            B.  Jurisdictional Chaos            ________________________                      The  appellate jurisdictional  woes  of the  Agents            began when they subsequently filed a timely notice of appeal.            Instead of naming all seventy-nine Agents, the caption in the            notice of  appeal merely  listed the  appellants as  "William            Gochis,  et.  al."     The  appealing  Agents   were  further            identified  in  the  body  of  the  notice  as  "all  of  the            plaintiffs in the above-entitled action."                        Agents' counsel was notified by  the Clerk's Office            that,  under Fed.  R.  App.  P. 3(c),3  the  notice could  be            deemed defective as to all  plaintiffs other than Gochis.  In            response  to this notification, because the thirty-day period            for  filing a notice of appeal under  Fed. R. App. P. 4(a)(1)            had elapsed, Agents' counsel filed with the district  court a            Fed.  R. App.  P.  4(a)(5)4  motion to  extend  the time  for                                            ____________________            second   motion  for  summary  judgment,  against  the  other            seventy-four Agents, was granted by the district court in  an            oral decision on April 8, 1993.            3.  Fed. R. App. P. 3(c)  states, inter alia, that the notice                                              _____ ____            of  appeal "shall  specify  the party  or parties  taking the                               _______            appeal." (emphasis supplied).   We note that Fed.  R. App. P.            3(c)  has been amended effective  December 1, 1993.  However,            since  neither  party  has raised  the  applicability  of the            revised  rule, we have  not considered the  amendment in this            appeal.            4.  Fed. R. App. P. 4(a)(5) states in relevant part that:                      The  district   court,  upon   a  showing   of                 excusable  neglect  or good  cause, may  extend the                 time  for filing  a notice  of  appeal upon  motion                 filed not later  than 30 days after  the expiration                 of the  time prescribed  by this Rule  4(a). .  . .                                         -3-                                          3            filing  a new notice  of appeal.   By margin order,  and over            Allstate's  objection,   the  district   court  granted   the            extension.  A  new notice of  appeal naming all  seventy-nine            Agents  was then  filed and  docketed.   Thereafter,  Agents'            counsel  voluntarily filed  a motion  to  withdraw the  first            notice of appeal.  We granted this motion in June 1993.                                           II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      On appeal, Allstate claims that  the district court            erred in granting Agents' motion to extend the time to file a            new  notice of appeal.5  More specifically, Allstate contends            that the district court erred in determining that the  Agents            adequately demonstrated  excusable neglect as  required under            Fed.  R. App.  P.  4(a)(5).   Agents, in  response, primarily            argue that the district court's grant of their motion was not            in error and, therefore, that  this appeal should proceed  as                                            ____________________                 [N]o  such extension shall exceed 30 days past such                 prescribed  time or 10 days  from the date of entry                 of the order granting the  motion, whichever occurs                 later.            5.  We  note that  Allstate incorrectly  assumes  that if  we            reverse  the district  court's ruling,  this  appeal will  be            dismissed as  to seventy-eight  of the  Agents only,  leaving            Gochis' appeal intact.  However, because the second notice of            appeal was filed  after the time prescribed by  Rule 4(a)(1),            and because the  first notice was voluntarily  withdrawn, the            appeals of all seventy-nine Agents, including  Gochis, depend                    __ ___ ____________ ______            upon the viability of the second notice of appeal.                                          -4-                                          4            to all seventy-nine Agents.  We think Allstate has the better            argument.6             A.  Standard of Review             A.  Standard of Review            ______________________                      Our review of a district court's interpretation  of                                                       ______________            Fed. R. App. P. 4(a)(5) is plenary.  Pontarelli v. Stone, 930                                                 __________    _____            F.2d 104,  109 (1st Cir.  1991).  Where the  district court's            grant of plaintiff's  motion to extend time for  filing a new            notice of appeal is  by margin order and, therefore,  without            any interpretation of  the rule, however, we  will ordinarily            review its decision to grant a Fed. R. App. P. 4(a)(5) motion            for abuse of  discretion.  See generally id.;  cf. Ramseur v.                                       ___ _________ ___   ___ _______            Beyer, 921 F.2d 504, 506 n.2. (3d Cir. 1990).            _____            B.  Excusable Neglect under Fed. R. App. P. 4(a)(5).            B.  Excusable Neglect under Fed. R. App. P. 4(a)(5).            ____________________________________________________                      As  noted above,  under Fed.  R.  App. P.  4(a)(1),            notices of appeal in civil cases must be filed "30 days after            the date of entry of the judgment . . . appealed from."  Fed.            R.  App. P.  4(a)(5)  provides  a  narrow  exception  whereby            delinquent parties may be granted up to an additional 30 days            by the district court.  To avail oneself of the exception, in                                            ____________________            6.  Agents also contend that Allstate waived its challenge to            the district court's ruling by  filing its objection 50  days            after  the district court's order was issued, and, therefore,            20 days after  the time prescribed by Rule  4(a)(1).  Because            our  jurisdiction depends upon  the validity of  the district            court's decision, however, we  are not bound by  this alleged            procedural   default.    Instead,  as  always,  we  have  "an            obligation  to inquire sua  sponte into [our]  subject matter                                   ___  ______            jurisdiction,  and to proceed no further if such jurisdiction            is wanting."  See In re  Recticel Foam Corp., 859 F.2d  1000,                          ___ __________________________            1002 (1st Cir. 1988).                                         -5-                                          5            circumstances  where  the  need for  the  extension  "results            entirely   from  neglect   attributable   to  appellant,   as            distinguished from forces beyond her control,  appellant must            show excusable neglect."  Pontarelli, 930 F.2d at 109.  As we                                      __________            have  often stated,  in  order  to  show  excusable  neglect,            appellant   must   demonstrate    unique   or   extraordinary            circumstances.  See, e.g., id.  at 104; Rivera v. Puerto Rico                            ___  ____  ___          ______    ___________            Tel. Co., 921 F.2d 393, 396 (1st Cir. 1990).  We find no such            ________            circumstances here.                      Agents, in their motion, explained to  the district            court that their tardiness was caused by a misapprehension of            Fed.  R.  App.  P.  3(c)'s  specificity  requirement.    This            misapprehension,  in turn, was  given two explanations:   (1)            the   "names  of   the   plaintiffs   were  omitted   through            inadvertence of counsel";  and (2) counsel's failure  to name            the  defendants  was  the  result   of  counsel's  "plausible            misconstruction" of the requirements of Fed. R. App. P. 3(c).            Neither explanation is sufficient to meet the Fed. R. App. P.            4(a)(5) standard.                      In  Rivera,  we  explicitly  held  that   counsel's                          ______            mistaken or  inadvertent failure to name the  appellants in a            notice of appeal  "does not constitute excusable  neglect for            purposes of  Fed.  R.  App.  P. 4(a)(5)"  absent  unusual  or            extraordinary  circumstances.    Rivera,  921  F.2d  at  396.                                             ______            Agents   argue    that   the   "unusual    or   extraordinary                                         -6-                                          6            circumstances" in this  case consist of their  own "plausible            misconstruction" of the requirements of Fed. R. App. P. 3(c).            We disagree.                      Although   we  do   not  completely   discount  the            possibility  that a  "plausible  misconstruction" of  Federal            Rules  may,  in  some situations,  meet  the  requirements of            excusable  neglect under  Fed. R.  App.  P. 4(a)(5),  Agents'            counsel's "misconstruction"  of the  requirements of  Fed. R.            App. P. 3(c) can hardly  be considered "plausible."  As noted            above, Fed. R.  App. P. 3(c) requires that a notice of appeal            "specify"  the "parties  taking the  appeal."   In 1987,  the            Supreme Court stated that "specify" means "name."  Torres  v.                                                               ______            Oakland  Scavenger Co., 487 U.S. 312, 314 (1987)("The failure            ______________________            to name a  party in a notice of appeal is more than excusable               ____            `informality';  it constitutes  a failure  of  that party  to            appeal.")(emphasis supplied).   Moreover, we  repeatedly have            held that  we lack jurisdiction over unnamed appellants.  See                                                                      ___            Rivera, 921  F.2d at 395;  Rosario-Torres v. Hernandez-Colon,            ______                     ______________    _______________            889 F.2d 314, 317 (1st  Cir. 1989) (en banc); Marin-Piazza v.                                                          ____________            Aponte-Roque,  873 F.2d  432, 433  (1st  Cir. 1989);  Santos-            ____________                                          _______            Martinez v. Soto-Santiago, 863 F.2d 174, 176 (1st Cir. 1988).            ________    _____________                      As  Agents point  out, we  have,  on one  occasion,            approved  a finding  that  counsel's  failure  to  name  each            appellant  on  the  notice  of  appeal constituted  excusable            neglect.  In  the case of In  re San Juan Dupont  Plaza Hotel                                      ___________________________________                                         -7-                                          7            Fire  Litig., 888  F.2d 940  (1st Cir.  1989), we  upheld the            ____________            district court's  grant of a  Fed. R. App. P.  4(a)(5) motion            where the initial  notice of appeal  simply stated that  "all            plaintiffs, through the Plaintiffs' Steering Committee hearby            [sic] appeal."   Id. at 941.  We found the district court did                             ___            not abuse its discretion by granting the Plaintiffs' Steering            Committee, ("PSC"),  a team  of trial  attorneys representing            over 2000 plaintiffs, a Fed.  R. App. P. 4(a)(5) extension to            file  a  new  notice  of   appeal  where  1)  there  were  an            extraordinary  number of  plaintiffs;7  2)  the  PSC  in  its            representative status "existed precisely to represent all the            active plaintiffs," id. at 942; and 3) the PSC had previously                                ___            filed  similar appeals in the same litigation without adverse            consequences.   Id. at 941-42.   Clearly, as  Agents' counsel                            ___            conceded  at oral argument, no such circumstances are present            in the record before us.                      Furthermore,   Agents'  reliance   on  Lorezen   v.                                                             _______            Employees Retirement Plan  of Sperry and Hutchinson  Co., 896            ________________________________________________________            F.2d  228 (7th  Cir. 1990),  as  supporting their  "plausible            misconstruction"  argument,   is  misplaced.     In  Lorezen,                                                                 _______            counsel's neglect  was excused  because, among  other things,            his plausible  interpretation of  the rule  at issue  had not            been foreclosed by the circuit until the twenty-eighth day of                                            ____________________            7.  It took thirty-nine  pages to list the  appellants in the            new notice of appeal.                                         -8-                                          8            the thirty-day appeal period.  Moreover, the court found that            counsel's interpretation  of the  rule had  been induced,  in            part,  by a confusing  motion submitted by  opposing counsel.            Again,  we  have no  such  circumstances  before us.    Here,            counsel's "misinterpretation" of Fed. R. App. P. 3(c) was due            to   nothing  more  than  counsel's  ignorance  of  the  law,            something  the Lorezen  court viewed  as inexcusable  neglect                           _______                   ___________            under  Fed.  R.  App.  P.   4(a)(5).    Id.  at  232  (naming                                                    ___            "`plausible misconstructions, but not mere  ignorance, of the                                          ___ ___ ____  _________  __ ___            law or rules' as one of the types of excusable neglect" under            ___ __ _____            Fed. R.  App. P.  4(a)(5)) (quoting  Redfield v.  Continental                                        _______  ________     ___________            Casualty Corp., 818 F.2d 596, 602 (7th Cir. 1987))  (emphasis            ______________            supplied).                      In sum, because Agents have failed, as a  matter of            law,  to demonstrate any circumstance that the district court            could have found to be  unique or extraordinary, we find that            the district court abused its discretion in extending Agents'            time to file a new notice of appeal.  Accordingly, we reverse            the district court's  order granting Agent's Fed. R.  App. P.            4(a)(5) extension.            C.  Failure to Perfect a Timely Appeal            C.  Failure to Perfect a Timely Appeal            ______________________________________                      Given the  invalidity of the district  court's Fed.            R. App. P. 4(a)(5) extension, Agents' second notice of appeal            is not timely  and, therefore, is ineffective to support this            appeal.  See, e.g., United  States v. Robinson, 361 U.S. 220,                     ___  ____  ______________    ________                                         -9-                                          9            229 (1960)(holding  that the time  limit to file a  notice of            appeal is "mandatory  and jurisdictional").  Agents'  counsel            argues that despite  the case law  discussed supra, we  still                                                         _____            have the authority, under  Fed. R. App. P. 2,  to suspend the            filing requirements.  We disagree.  Fed. R. App. P. 2 states,            in relevant part, that  "for . . . good cause  shown, a court            of appeals may, except as  otherwise provided in Rule  26(b),                            ______ __  _________ ________ __ ____  _____            suspend the  requirements or provisions of any of these rules            in a particular case on application of  a party or on its own            motion."  (Emphasis supplied).   Fed.  R.  App. P.  26(b), in            turn,  expressly forbids a  court from "enlarg[ing]  the time            for  filing an appeal."   See also  Torres, 487 U.S.  at 317.                                      ___ ____  ______            Accordingly, we have  no jurisdiction to reach  the merits of            this action  and must necessarily  dismiss.8  See id.  at 317                                                          ___ ___            n.3  (holding that  failure  to  comply  with  the  technical            requirement of Fed. R. App.  P. 3(c) erects a  jurisdictional            hurdle  which  can  never be  "`harmless'  or  waived  by the            court").                                          III.                                          III.                                          ____                                      Conclusion                                      Conclusion                                      __________                      Agents'  failure to  perfect an  appeal within  the            time prescribed  by Fed.  R. App.  P. 4(a)(1)  obligates this                                            ____________________            8.  This  disposition,  of  course,  makes  unnecessary   any            consideration  of the merits of Agents' appeal.  Nonetheless,            we note that  even if we were  to reach the merits,  we would            affirm  the district  court's entry  of  summary judgment  in            favor of Allstate.                                           -10-                                          10            court  to  dismiss  their appeal  for  want  of jurisdiction.            Accordingly,  the grants of summary judgment below are final.            See Piazza v. Aponte Roque, 909 F.2d 35, 39 (1st Cir. 1990).            ___ ______    ____________                      Dismissed.                      __________                                         -11-                                          11
