17-3818-cv
Dixon v. State of New York et al.


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT
                                            SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 11th day of September, two thousand eighteen.
PRESENT: RALPH K. WINTER,
            JOHN M. WALKER, JR.,
            CHRISTOPHER F. DRONEY,
                       Circuit Judges.
______________________________________________
ANGELA S. DIXON,
                       Plaintiff-Appellant,

                                    v.                                     No. 17-3818-cv

STATE OF NEW YORK; OFFICE OF THE NEW YORK STATE
COMPTROLLER,
                      Defendants-Appellees.
______________________________________________

   FOR PLAINTIFF-APPELLANT:                            MICHAEL H. SUSSMAN, Sussman and
                                                       Associates, Goshen, NY.

   FOR DEFENDANTS-APPELLEES:                           MEREDITH SAVITT, Law Office of Meredith
                                                       H. Savitt, P.C., Delmar, NY.




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      Appeal from a November 14, 2017, order of the United States District Court for the
Northern District of New York (Suddaby, C.J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is AFFIRMED.

       Plaintiff-Appellant Angela Dixon, an African-American woman, sued her
employers, Defendants-Appellees the State of New York and the Office of the New York
State Comptroller, alleging racial discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. On September 29, 2017, the district court granted
Defendants-Appellants’ motion to dismiss the complaint for failure to state a claim, and
entered a judgment dismissing the action.

       Dixon’s deadline to file the requisite notice of appeal with the district court was
October 30, 2017. 1 She missed the deadline. On November 3, 2017, Dixon moved
pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A) for an extension of time to file
a notice of appeal. Defendants-Appellees opposed, and the district court denied the
motion on November 14, 2017. Dixon timely appealed the district court’s November 14
order denying her motion for an extension of time. We assume the parties’ familiarity
with the facts and proceedings below, and repeat them only as necessary to explain our
decision to affirm.

       In support of Dixon’s motion for an extension of time, her attorney Michael H.
Sussman submitted an affidavit to explain why Dixon’s failure to timely file a notice of
appeal was excusable neglect. Sussman attributed the late filing to Dixon’s initial
indecision about whether to appeal and to his own personal and professional obligations in
the three days before the filing deadline.

      The district court denied the motion by text order, adopting the arguments in
Defendants-Appellees’ memorandum of law 2 and making several findings of its own.
These findings were as follows: (1) that Defendants-Appellees failed to show prejudice

1
  A notice of appeal is ordinarily due thirty days after judgment is entered. See Fed. R. App. P. 4(a)(1)(A).
But because October 29, 2017, was a Sunday, Dixon’s notice of appeal was due the following day. See
Fed. R. App. P. 26(a)(1)(C).
2
  The memorandum of law was not included in the record on appeal but is available on the district court
docket. Dixon v. State of New York, 16-cv-1184, Dkt. # 24 (N.D.N.Y. Nov. 9, 2017).



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from the late filing; (2) that the delay was slight; (3) that although Sussman was “relatively
frank in acknowledging that the delay was due to his own negligence,” he was “not specific
regarding the several pieces of obviously missing information identified by Defendants;”3
and (4) that the reasons for the delay were ordinary and within Sussman’s control. J. App.
at 5, Dkt. # 27. The court found that the first two findings weighed slightly in favor of
granting Dixon’s motion, but the third finding weighed slightly against and the fourth
weighed strongly against granting the motion. Thus, the court concluded that the motion
should be denied “even if the correct legal standard were to strictly weigh the four above-
described factors (rather than to loosely weigh them with an eye toward preventing abuse
by movants).” Id. This appeal followed.

        A 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 [for the filing of a notice of appeal] expires;
and (ii) . . . that party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A).
We review a district court’s ruling on a Rule 4(a)(5) motion for abuse of discretion.
Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004). Thus, we reverse
such an order only if we have “a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion that it reached upon a weighing of
the relevant factors.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 362 (2d Cir.
2003) (citation omitted).

       Our standard for evaluating excusable neglect comes from the Supreme Court’s
decision in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507
U.S. 380 (1998). See Silivanch, 333 F.3d at 36566. Factors to consider include “[1]
the danger of prejudice to the [non-movant], [2] the length of the delay and its potential
impact on judicial proceedings, [3] the reason for the delay, including whether it was within
the reasonable control of the movant, and [4] whether the movant acted in good faith.”
Pioneer, 507 U.S. at 395. The Pioneer test looks to the both the movant’s and her
counsel’s actions to determine whether neglect is excusable. Id. at 397. We have held
in the context of a Rule 4(a)(5) motion that, because the prejudice, length of delay, and
good faith factors typically favor the moving party, “it is the third factor—the reason for
the delay—that predominates.” Williams, 391 F.3d at 415; accord Silivanch, 333 F.3d at
366. We have also said that “failure to follow the clear dictates of a court rule will
generally not constitute . . . excusable neglect.” Canfield v. Van Atta Buick/GMC Truck,
Inc., 127 F.3d 248, 250 (2d Cir. 1997); see also id. at 251 (“Where . . . the rule is entirely

3
  These included, inter alia, why Sussman waited two weeks before telling Dixon about the dismissal; on
what date Dixon advised Sussman that she wanted to proceed with the appeal; why another lawyer at
Sussman’s firm did not file the notice of appeal for him; and why Sussman could not have filed the notice
of appeal between his professional obligations on the day it was due.

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clear, . . . a party claiming excusable neglect will, in the ordinary course, lose under the
Pioneer test.”).

      On appeal, Dixon contends the district court abused its discretion by ruling that she
had not shown excusable neglect warranting an extension of time to file a notice of appeal.
We disagree.

        The November 14, 2017, order correctly applied the four-factor Pioneer test.
district court reasonably found that factors one and two—the lack of prejudice to
Defendants-Appellees and the short delay—weighed slightly in Dixon’s favor. See
Williams, 394 F.3d at 415. The court then found that factor four, good faith, weighed
slightly against Dixon, because Sussman’s affidavit was not specific about certain
“obviously missing information identified by” Defendants-Appellees.4 J. App. at 5, Dkt.
# 27. Indeed, Sussman’s narrative fails to completely explain why the notice of appeal
was filed late, and we cannot say it was clearly erroneous for the district court to infer some
bad faith from Sussman’s failure to provide certain details. As to factor three, the court
found that the reasons for the delay were sufficiently “ordinary” and within Sussman’s
control as to weigh strongly against granting Dixon’s motion. Based on Sussman’s
affidavit and the arguments that Defendants-Appellees articulated in the memorandum of
law they submitted to the district court, this was not an abuse of discretion. In particular,
it was not unreasonable for the court to conclude that Sussman inexcusably failed for three
days to prepare and electronically file a standard, one-page notice, see, e.g., J. App. at 7,
or to ask another employee at his firm to do so.

       Finally, we find no abuse of discretion in the district court’s weighing of all four
factors, which it did both “strictly” and “loosely . . . with an eye toward preventing abuse
by movants.”5 J. App. at 5, Dkt. # 27. The court was within its discretion to weigh what

4
  We note that the district court discussed the four Pioneer factors slightly out of order: its fourth finding
clearly corresponds with factor three, the reason for the delay, and we easily interpret its third finding as
addressing factor four, bad faith. For this reason, Dixon’s argument that the district court abused its
discretion by determining that bad faith cut strongly against her is incorrect—the district court actually
found that the third factor, reason for delay, cut strongly against Dixon.
5
  We reject Dixon’s contention that the district court erroneously adopted Defendants-Appellees’ argument
that, “since [Dixon] failed to comply with the rule by timely noticing her intent to appeal, [she] should be
denied relief.” Plaintiff-Appellant’s Br. at 13. By weighing all four Pioneer factors, the court did not
deny relief based solely on Dixon’s non-compliance with the rule. Dixon also mischaracterizes
Defendants-Appellees’ argument adopted by the district court—they did not argue for such a strict rule.



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it perceived as Sussman’s inadequate reasons for the delay more heavily than the other
factors, either on the facts of this case or in light of our guidance that this is the most
important factor in the Rule 4(a)(5) context. See Williams, 391 F.3d at 415.

                                               * * *

       We have considered Plaintiff-Appellant’s remaining arguments and conclude that
they lack merit. Accordingly, we AFFIRM the order of the district court.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




Similarly, the fact that the district court analyzed the four factors both with and without considering
potential abuse by litigants undermines Dixon’s argument that the court lacked a “basis” to find that “the
instant circumstances suggest some form of abuse” by Dixon. See id.

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