
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          Nos. 93-2010               93-2217                             ANA VIRELLA-NIEVES, ET AL.,                                Plaintiffs, Appellees,                                          v.                        BRIGGS & STRATTON CORPORATION, ET AL.,                                Defendants, Appellees.                                 ____________________                AIRCAP INDUSTRIES, INC., AND CIGNA INSURANCE COMPANY,                               Defendants, Appellants.                                 ____________________          No. 93-2229                             ANA VIRELLA-NIEVES, ET AL.,                               Plaintiffs, Appellants,                                          v.                             AIRCAP CORPORATION, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________               Steven C. Lausell with whom Manuel San Juan was on brief for               _________________           _______________          plaintiffs.               Francisco J.  Colon-Pagan with whom Keith  A. Vanderburg was               _________________________           ____________________          on brief for defendants.                                 ____________________                                     May 4, 1995                                 ____________________               COFFIN, Senior  Circuit Judge.  The  district court, finding                       _____________________          that  defendants had  "good cause"  for their  failure to  file a          notice of appeal within  the applicable thirty-day period, issued          an order extending their  time to file an appeal.   Because "good          cause" is not the proper basis for an extension of time under the          circumstances present here, we must vacate the court's order.                                    I. Background                                       __________               After trial, the  jury returned a verdict for  plaintiffs on          their product  liability action.   Both  sides then  filed timely          post-trial  motions, which were denied  by the court  on July 12,          1993.  The clerk  of court received and filed the  court's orders          denying the motions  that same day and docketed  them on July 13.          It is uncontested  that, on  July 14, the  clerk's office  mailed          copies of the orders to  defendants and that defendants  received          them.  These copies  showed that the judge had  signed the orders          and the  clerk's office had received  and filed them on  July 12.          Defendants  submit, however, that they did not indicate that they          had been entered  upon the  court docket, which  is the  starting          point  for  the running  of the  thirty-day  period for  filing a          notice of appeal.  See Fed. R. App. P. 4(a).                             ___               In other  words, defendants knew  that the court  had denied          the  post-trial motions on July  12, that the  clerk's office had          received and filed the court's orders on that same day, and  that          all that remained for  the clock to begin  running on the  period          for  taking an appeal  was for the clerk's  office to perform the          ministerial  task   of  entering  a  notation   onto  the  docket                                         -3-          indicating  that the  post-trial motions had  been denied.   Yet,          despite this  knowledge, defendants  did nothing until  August 9,          when the secretary of defendants' lead counsel returned  from her          vacation.  It was only upon her return that defendants first made          an attempt  to find out  if the  orders had been  entered on  the          docket.                 According to the secretary's  unsworn statement, she  called          the clerk's  office "on  various occasions" to  ascertain if  the          orders  had been  docketed.   Though she  provided no  dates, she          stated  that  "each time"  she called,  she  was told  by unnamed          "clerk's office  personnel" that  the computer system  was down.1          Faced with what should  have been the alarming prospect  that, if          the clerk's office had docketed the orders on the day it received          them,  the time to appeal would expire August 12, defense counsel          did   nothing  more   than  have   his  secretary   continue  her          unsuccessful attempts.   It was not until August 16  that she was          told that the orders  had been docketed.  Still,  defense counsel          did  not  think to  inquire when  the  orders had  been docketed.                                      ____          Instead,  upon  learning that  the  orders had  been  entered, he          assumed that  he would  receive written  notice from  the clerk's          office advising  him of  the date  of their  entry,  and took  no          further steps to learn this crucial fact himself.                 It was only during a chance telephone  conversation later on          August 16  that plaintiffs' counsel mentioned  to defense counsel                                        ____________________               1 She stated that on one occasion she was told by "Nancy" of          the clerk's office to try again the next day.                                         -4-          that the  orders had  been entered on  July 13.   The  thirty-day          period  had expired.  Sometime  during the evening  of August 18,          defense  counsel filed  a  motion pursuant  to  Fed. R.  App.  P.          4(a)(5) requesting an extension of time to file an appeal "on the          grounds of excusable neglect  or good cause."  The  court granted          the motion by margin  order, writing only: "For good  cause shown          the  requested  extension of  time to  file  Notice of  Appeal is          Granted."  Defendants then appealed.  Plaintiffs thereafter filed          their cross appeal.  See Fed. R. App. P. 4(a)(3).                               ___                                    II. Discussion                                        __________               Pursuant to Fed.  R. Civ. P.  77(d), the  clerk of court  is          charged with the responsibility of mailing notice of the entry of          court orders and judgments to all non-defaulted parties.  But the          Rule  itself plainly  states that  the clerk's  failure to  do so          "does not affect the  time to appeal or relieve  or authorize the          court to  relieve a party for  failure to appeal within  the time          allowed, except as permitted in Rule 4(a) of the Federal Rules of          Appellate Procedure."  Thus,  since lack of receipt of  notice of          the  entry of the dispositive orders is the basic reason advanced          for defendants' delinquency, we turn to Fed. R. App. P. 4(a).               Before Rule 4(a) was amended in 1991, only  one subdivision,          4(a)(5), gave  district judges the authority  to grant extensions          of  time to file appeals.   That section  provides: "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 original time                                         -5-          period allowed.    Fed. R.  App.  P. 4(a)(5).    Seven courts  of          appeals have read this  rule to mean that the good cause standard          is applicable  only to requests  for extensions  made before  the          expiration of  the original  period for  filing a timely  appeal,          while  the excusable neglect  standard applies if  the request is          made  afterward.  See Pontarelli  v. Stone, 930  F.2d 104, 109-10                            ___ __________     _____          (1st Cir. 1991) (collecting cases from  the Second, Fifth, Sixth,          Seventh, Eighth, Ninth and Eleventh Circuits).2                 We have taken a different view.   As we first noted almost a          decade ago, Rule 4(a)(5) "expressly recognizes `good cause' as  a          basis for extension both  before and after the expiration  of the          appeal time."   Scarpa  v. Murphy, 782  F.2d 300,  301 (1st  Cir.                          ______     ______          1986).  Scarpa involved a request for an extension made after the                  ______          period had expired,  but was  occasioned by no  "neglect" on  the          part of the would-be appellant.  Rather, the notice of appeal was          filed late because of  delay by the United States  Postal Service          in  delivering it  to  court.   Thus we  said that  the extension          should have been granted  because there was good cause  shown for          its  being  filed late,  rather  than any  neglect,  excusable or          otherwise, by the appellant.  Id.                                        ___                                        ____________________               2  These  courts  have  relied  heavily  upon  the  advisory          committee  note to the 1979 amendment to Rule 4(a)(5) in reaching          this holding.   Before 1979,  a district court  was empowered  to          extend  the period for  filing an appeal  only upon a  finding of          excusable  neglect.   The  advisory  committee  wrote that  while          excusable neglect  "was an appropriate standard in cases in which          the motion is made after the time for filing the notice of appeal          has run, and remains so,  it has never fit exactly the  situation          in  which the appellant seeks an  extension before the expiration          of the  initial time.   In such a case  `good cause' .  . . seems          more appropriate."                                         -6-               More recently, in Pontarelli  v. Stone, 930 F.2d at  110, we                                 __________     _____          reiterated that a showing of good cause could justify granting an          extension even  if requested after  the initial  time period  had          expired.   But we also  made clear that  the two standards occupy          distinct  spheres.  The good  cause standard, which  was added by          the   1979  amendment,   "neither  displaces  nor   overlaps  the          `excusable  neglect'  analysis  customarily  employed  under  the          earlier rule."  Id.  Rather, it adds a limited basis for granting                          ___          an  extension  in  those  circumstances  that  are  "unsuited  to          traditional   `excusable   neglect'  analysis."      Id.     Such                                                               ___          circumstances were  found to be  present in Scarpa  because there                                                      ______          was  no "neglect" by  the would-be appellant  at all, so  that it          made no sense to analyze whether the neglect was "excusable."               Such  is not the  case here.  Defendants  were put on notice          that  the dispositive  orders had  been signed  by the  judge and          received by the clerk's office on July 12.  By  their own choice,          they waited almost the  full thirty days, until August  9, before          even attempting to learn when the orders had been docketed.  When          telephonic  inquiries proved  unavailing,  they took  no  further          steps, but simply allowed the time to expire.  They  presented no          reason for their  failure, for  example, to send  a messenger  to          court to look up the relevant date, and we see  no "forces beyond          [their] control," id. at 111  -- at least on this record  -- that                            ___          prevented them from taking this eminently reasonable step.  Thus,          under  Rule  4(a)(5), it  is clear  that only  excusable neglect,          rather than good cause, could justify granting an extension.  See                                                                        ___                                         -7-          Gochis v. Allstate, 16 F.3d 12, 14 (1st Cir. 1994) (where failure          ______    ________          to file timely appeal  is due to party's own neglect, rather than          forces  beyond   party's  control,  excusable   neglect  standard          applies).   The  determination of  whether a  party's  neglect is          excusable "is at bottom an equitable one, taking into account all          of  the relevant circumstances surrounding the party's omission."          Pioneer Inv.  Servs. Co.  v. Brunswick Assocs.  Ltd. Partnership,          ________________________     ___________________________________          113 S.  Ct.  1489, 1498  (1993)  (giving non-exhaustive  list  of          relevant factors).3   No such determination having  been made, we          must  vacate the  grant of  additional time  to file  the appeal.          Since plaintiffs'  cross appeal  was timely  only because  of the          additional time  granted  to  defendants,  see Fed.  R.  App.  P.                                                     ___          4(a)(3), we have jurisdiction over neither party's appeal.               Two observations remain.  We already have noted that, before          1991,  Rule 4(a)(5)  was the  sole basis for  granting additional          time to appeal.   Defendants  apparently failed  to realize  that          Rule  4(a)  was  amended in  1991  to  respond  precisely to  the          situation in  which they found  themselves.  The  new subdivision          provides:               The district court, if it finds (a) that a party entitled to               notice of the entry  of a judgment or order  did not receive               such notice from  the clerk or any  party within 21  days of                                        ____________________               3 We agree with the  Tenth Circuit that Pioneer's exposition                                                       _______          of  excusable  neglect,  though  made  in  the  context  of  late          bankruptcy filings,  applies equally to Fed. R.  App. P. 4(a)(5).          See City of  Chanute, Kansas  v. Williams Nat.  Gas Co., 31  F.3d          ___ ________________________     ______________________          1041, 1046  (1994).  We  may add  one further rationale  to those          given by the Tenth Circuit for this conclusion: the Pioneer Court                                                              _______          specifically cited  conflict among  the circuits  in interpreting          excusable  neglect  in Rule  4(a)(5)  as  a  reason for  granting          certiorari.  Pioneer, 113 S. Ct. at 1494 n.3.                       _______                                         -8-               its  entry and (b) that  no party would  be prejudiced, may,               upon motion filed within  180 days of entry of  the judgment               or  order  or  within 7  days  of  receipt  of such  notice,               whichever is earlier, reopen the time for appeal.          Fed. R. App.  P. 4(a)(6).   This section may supply  an alternate          basis for the district court  to grant defendants additional time          to  appeal.   Of course, it  was not  relied upon  below, and the          district  judge  had no  occasion  to  make the  requisite  fact-          findings.   We offer no speculation on whether defendants may now          rely upon this provision or,  if so, how the district judge  will          find the relevant facts.               Finally, at  oral argument we  urged the parties  to explore          settlement.  They did so, to no avail.  Now, in the light of this          remand, it seems especially  appropriate to renew the suggestion.          Not only is  there no guarantee at this juncture  that the appeal          (and the cross appeal) can go forward, but we are  skeptical that          any appellant would eventually succeed in reversing the judgments          below.               Accordingly, the order granting additional time to file this          appeal  is  VACATED  and  the case  is  REMANDED  for proceedings          consistent with this opinion.  Costs to plaintiffs.                                         -9-
