                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       February 3, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UTAH REPUBLICAN PARTY,

      Plaintiff - Appellant,

and

CONSTITUTION PARTY OF UTAH,

      Plaintiff and Intervenor,

v.                                                        No. 16-4058
                                                  (D.C. No. 2:14-CV-00876-DN)
GARY R. HERBERT, in his official                            (D. Utah)
capacity as Governor of Utah; SPENCER
J. COX, in his official capacity as
Lieutenant Governor of Utah,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

      The Utah Republican Party (URP) appeals the district court’s denial of URP’s

several untimely requests for an extension of time to file a post-judgment motion for

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
attorney’s fees and costs. Because we conclude the district court did not abuse its

discretion in finding URP failed to show good cause for an extension, we affirm.

                                     Background

      URP and an intervening plaintiff, the Constitution Party of Utah, filed suit

against Utah challenging amendments to Utah’s election code. In the course of the

litigation, URP repeatedly missed filing deadlines and the district court repeatedly

reminded URP’s counsel, Marcus Mumford, about the need to comply with

deadlines. The court eventually sanctioned URP by striking its late-filed motion for

summary judgment and, after URP missed yet another deadline, ordered URP to

retain co-counsel to ensure compliance with deadlines. Ultimately, the district court

granted partial summary judgment in favor of URP and the Constitution Party,

finding one provision of the challenged law unconstitutional, and entered judgment

on November 23, 2015.

      Under Fed. R. Civ. P. 54(d)(2)(b), URP and the Constitution Party had until

December 7, 2015, to file a motion for attorney’s fees and costs. Id. (requiring

motion for costs and attorney’s fees to be filed “no later than 14 days after the entry

of judgment”). The Constitution Party timely filed its motion but URP did not.

Instead, on December 8th, at 12:01 a.m., URP filed a Fed. R. Civ. P. 6(b)(1) motion

seeking a one-day extension (or until the end of the day on December 8) to file its

motion. In support, Mumford recited that he had attended an out-of-state mediation

proceeding December 2-5, and as a result he was unable to obtain a required affidavit

from co-counsel. Mumford also indicated that he had learned early the morning of

                                           2
December 7 that his paralegal, whom he relied upon to finalize billing statements and

invoices, had been hospitalized the night before for back pain. When Utah objected

to the extension, Mumford filed a reply. In it, he expanded his reasons for the

extension, pointing out that the 14-day period after judgment included the

Thanksgiving weekend. Mumford also offered that he had planned to obtain

co-counsel’s affidavit on December 7 but didn’t hear from him that day. According

to Mumford, he learned after filing the extension request that co-counsel had

unexpectedly left the state to assist in moving his mother to a nursing home.

      Later in the day on December 8, Mumford filed a second extension request

seeking a longer period of time to file the motion. In this motion, Mumford indicated

that he anticipated his co-counsel would return to work December 9 but that “in an

abundance of caution” he sought a two-day extension, or until December 10, to file

his motion. Utah again objected.

      But Mumford didn’t file his motion for attorney’s fees and costs on or before

December 10. Instead, at 11:58 p.m. on December 10, Mumford filed a third

extension request, this time seeking one additional day to file the motion. In support,

Mumford recited that he hadn’t obtained necessary information from co-counsel until

4:30 p.m. that day and that his paralegal was working from home on bed rest.

Mumford finally submitted URP’s attorney’s fees and costs motion on December 11,

four days late.

      The district court denied all of URP’s extension requests, concluding URP

demonstrated neither good cause for an extension nor excusable neglect for the late

                                           3
filing of its three requests. URP filed a motion for reconsideration under Fed. R. Civ.

P. 59(e). In it, Mumford offered a new reason for URP’s untimely extension request,

suggesting that he was involuntarily and unexpectedly logged off of CM/ECF just

before midnight. Mumford attached a CM/ECF log record to support his assertion.

The district court denied URP’s reconsideration motion and URP appeals that denial

as well as the denial of his extension motions.

                                       Analysis

      We review the denial of both motions for abuse of discretion. Buchanan v.

Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (stating standard for reviewing denial of

extension of time under Rule 6(b)(1)); Phelps v. Hamilton, 122 F.3d 1309, 1324

(10th Cir. 1997) (stating same for Rule 59(e)). Under that standard, a district court’s

“decision will not be disturbed unless the reviewing court has a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Bishop v. Corsentino, 371 F.3d

1203, 1206 (10th Cir. 2004) (internal quotation marks omitted).

      Under Rule 6(b)(1), a district court may extend a deadline for “good cause.” If

the request is made before the original deadline, the court need only find good cause

for the extension. Rachel v. Troutt, 820 F.3d 390, 395 (10th Cir. 2016); Rule

6(b)(1)(A). But if the extension request is made after the original deadline, as it was

here, the court must also determine whether “the party failed to act because of

excusable neglect.” Rule 6(b)(1)(B). In other words, an extension can only be

granted for good cause regardless of when the extension was requested. But if the

                                           4
extension request was filed after the original deadline, the court must also determine

whether the failure to timely meet the deadline was due to excusable neglect.

See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 873 (1990) (holding that under Rule

6(b)(1), “a post-deadline extension . . . is permissible only where the failure to meet

the deadline was the result of excusable neglect”) (internal quotation marks omitted);

4B Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice

and Procedure § 1165 (4th ed. 2015) (“[T]he district court may order an extension

even after the expiration of a specified time period, but only for “good cause” and

where the party’s failure to act in a timely fashion was the result of “excusable

neglect.”).1

       As noted, the district court concluded that URP failed to show either good

cause for an extension or excusable neglect for its untimely extension requests.

URP challenges both findings on appeal. But because we conclude the district court

did not abuse its discretion in finding URP failed to show good cause, we do not

reach URP’s challenge to the district court’s findings regarding excusable neglect.



       1
          URP appears to mistakenly interpret Rule 6(b)(1) to require a showing of
good cause if the request is made before the original deadline, but require only a
showing of excusable neglect if the request is filed after the original deadline. This
interpretation is contradicted by the plain language of Rule 6(b)(1), which requires
good cause for all extensions. URP also mistakenly asserts that it timely filed its
second and third extension requests because they were filed within the time requested
in its initial extension request. But Rule 6(b)(1)(A) provides that a timely extension
request is one filed “before the original time or its extension expires.” Because the
district court never granted URP’s initial extension request, all three requests were
untimely filed after the original deadline.

                                           5
      In reviewing this issue, we are mindful that Rule 6(b)(1) “should be liberally

construed to advance the goal of trying each case on the merits.” Rachel, 820 F.3d at

394. But “an enlargement of the time period is by no means a matter of right.” Eller

v. Trans Union, LLC, 739 F.3d 467, 478 n.10 (10th Cir. 2013) (internal quotation

marks omitted).

      “‘[G]ood cause’ requires a greater showing than ‘excusable neglect.’”

Broitman v. Kirkland (In re Kirkland), 86 F.3d 172, 175 (10th Cir. 1996). The two

standards, although “interrelated,” are not identical. Id. Excusable neglect requires

“some showing of good faith on the part of the party seeking the enlargement and

some reasonable basis for noncompliance within the time specified.” Id. (internal

quotation marks omitted). We have said that “[w]ithout attempting a rigid or

all-encompassing definition of ‘good cause,’ it would appear to require at least as

much as would be required to show excusable neglect.” Id. (internal quotation marks

omitted). “Good cause comes into play in situations in which there is no fault—

excusable or otherwise. In such situations, the need for an extension is usually

occasioned by something that is not within the control of the movant.” Bishop,

371 F.3d at 1207 (internal quotation marks omitted) (interpreting good cause for an

extension of time to appeal under Fed. R. App. P. 4(a)(5)). It requires the moving

party to show the deadline “cannot be met despite the movant’s diligent efforts.”

Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir.




                                          6
2014) (brackets and internal quotation marks omitted) (interpreting good cause to

modify a scheduling order under Fed. R. Civ. P. 16(b)(4)).2

      In arguing that the district court abused its discretion in finding URP hadn’t

established good cause for the extension, URP relies primarily upon Mumford’s

recitations in his several motions for extension regarding the unexpected

unavailability on December 7 of Mumford’s co-counsel and paralegal. But this

argument ignores important context—namely, Mumford’s decision to wait until the

day the motion was due to prepare and assemble the motion, including obtaining an

affidavit from counsel and finalizing his own billing statements and invoices. Had he

diligently attempted in the prior thirteen days to obtain the affidavit and prepare the

motion, the unavailability of his co-counsel and paralegal on the fourteenth day

would not have necessitated an extension. See Madden v. Texas, 498 U.S. 1301,

1304 (Scalia, Circuit Justice 1991) (finding no good cause for extension to file writ

of certiorari due to death of counsel’s father because counsel had not worked

      2
        In contrast, excusable neglect “is not limited to situations where the failure to
timely file is due to circumstances beyond the control of the filer.” Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 391 (1993). It is an
“equitable” standard, and courts should consider four factors when determining
whether neglect is excusable: (1) “the danger of prejudice”; (2) “the length of the
delay and its potential impact on judicial proceedings”; (3) the reasons for the delay
which includes “whether it was within the reasonable control” of the party seeking to
show excusable neglect; and (4) whether that party acted in good faith. Id. at 395.
URP appears to contend that the district court was required to consider these factors
in determining the existence of both excusable neglect and good cause. To the
contrary, we have held that a good cause analysis doesn’t require application of the
Pioneer factors. Kirkland, 86 F.3d at 175 (holding Pioneer’s factors need not be
applied when analyzing whether there is good cause for failure to make timely
service under former Fed. R. Civ. P. 4(j)).

                                            7
diligently on the petition and provided no explanation “why the task has been left to

the last minute”). “The lesson to the federal plaintiff’s lawyer is not to take any

chances.” Cox v. Sandia Corp., 941 F.2d 1124, 1126 (10th Cir. 1991) (internal

quotation marks omitted) (finding no good cause under Fed. R. Civ. P. 4(j) for failure

to effect service when counsel waited to hire a process server).

       Of course, URP suggests that Mumford did offer an explanation to justify his

last minute efforts—i.e., Mumford’s assertion that he participated in mediation from

December 2 to December 5. But we have held that the fact that the movant’s counsel

is professionally engaged in other matters is not sufficient, as a matter of law, to

show excusable neglect. United States v. Mitchell, 464 F.3d 1149, 1152 (10th Cir.

2006), rev’d on other grounds, 551 U.S. 1129 (2007). Thus, it most certainly isn’t

sufficient to show good cause, which requires a greater showing. Moreover,

Mumford doesn’t assert that his participation in the mediation was a surprise. Nor

does he suggest that he made any effort, much less a diligent effort, to comply with

the deadline, knowing that he would be engaged in other matters for at least a few

days of the 14-day time period.

       URP’s arguments also disregard the broader context in which the district court

considered Mumford’s out-of-time request to extend the motion deadline.

Specifically, throughout the course of this litigation, the district court not only

repeatedly warned Mumford about his multiple failures to comply with deadlines, but

eventually sanctioned Mumford and required that he obtain co-counsel because of

these failures. URP cites no authority, and we are aware of none, that would require

                                            8
the district court to view Mumford’s belated request to extend this particular deadline

in a vacuum.3

      And importantly, Mumford’s dilatory practices continued even after he had

filed his untimely request for an extension of the December 7 deadline. Mumford

knew during the day on December 7 that his paralegal and co-counsel were

unavailable, yet he waited until midnight to file his extension request. And although

in that motion Mumford advised the court he would file the attorney’s fees motion by

the end of the day on December 8, he failed do so. Instead, Mumford filed a second

request for extension later in the day on December 8, this time indicating he would

file the motion on December 10. But instead of filing the motion on December 10,

Mumford filed a third request for extension at 11:58 p.m. on December 10 seeking

one additional day to file the motion. The district court properly considered all of

these circumstances in finding URP failed to demonstrate good cause in denying the

motions for extension.

      Finally, URP argues the district court abused its discretion by not liberally

applying Rule 6(b). But the liberal-construction rule is “to effectuate the general

purpose of seeing that cases are tried on the merits.” Rachel, 820 F.3d at 394

(internal quotation marks omitted). Here, the court’s denial of URP’s extension




      3
         We need not recite Mumford’s history of missed deadlines, with which the
parties are quite familiar, and Mumford concedes he missed eight pre-judgment
deadlines.

                                           9
request impacts URP’s ability to recover its costs and attorney’s fees, not the merits

of its case.

       We have no hesitancy in concluding that under the circumstances presented

here, the district court did not abuse its discretion in refusing to afford URP a liberal

interpretation of Rule 6(b)(1) or in finding URP failed to show good cause for an

extension. See Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir. 1997) (holding a

district court’s ruling on whether there is good cause for an extension “will not be

disturbed . . . . [unless it] is arbitrary, capricious, or whimsical”). Thus, we need not

reach URP’s arguments that it showed excusable neglect in filing untimely extension

requests.

       Affirmed.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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