                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-1042


SYMBIONICS INC.,

                Plaintiff - Appellant,

          v.

CHRISTOPHER J. ORTLIEB,

                Defendant – Appellee,

          and

AMY ORTLIEB; OPM,     LLC;    ATACC   SYSTEMS,   LLC;   WARFIGHTER
TECHNOLOGIES, LLC,

                Defendants.



                              No. 10-1289


SYMBIONICS INC.,

                Plaintiff - Appellee,

          v.

CHRISTOPHER J. ORTLIEB,

                Defendant – Appellant,

          and

AMY ORTLIEB; OPM,     LLC;    ATACC   SYSTEMS,   LLC;   WARFIGHTER
TECHNOLOGIES, LLC,

                Defendants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.      Anthony J. Trenga,
District Judge. (1:08-cv-00044-AJT-TRJ)


Argued:   March 22, 2011                      Decided:    May 23, 2011


Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.


Appeal dismissed;    case   remanded   by   unpublished   per   curiam
opinion.


ARGUED: Steven Martin Gombos, RITZERT & LEYTON, PC, Fairfax,
Virginia,   for   Appellant/Cross-Appellee.       Christine   Marie
Nicolaides,   PILLSBURY,   WINTHROP,    SHAW    &   PITTMAN,   LLP,
Washington, D.C., for Appellee/Cross-Appellant.          ON BRIEF:
Gerald M. Ritzert, RITZERT & LEYTON, PC, Fairfax, Virginia, for
Appellant/Cross-Appellee.      Karen-Faye    McTavish,   PILLSBURY,
WINTHROP,   SHAW   &   PITTMAN,   LLP,   Washington,    D.C.,   for
Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

       Symbionics, Inc., filed an untimely notice of appeal from

the    district        court    judgment       in    the   instant      action    between

Symbionics       and     Christopher      J.       Ortlieb.      The    district    court

subsequently granted Symbionics’ motion for an extension of time

to file a notice of appeal, finding that an error associated

with       counsel’s    use    of   a    computer      calendar    to    calculate      the

deadline constituted “excusable neglect” under Federal Rule of

Appellate       Procedure       4(a)(5)(A).            Ortlieb    cross-appeals         the

district court’s excusable neglect determination.                             Because we

conclude       that     the    district     court      abused     its    discretion      by

granting Symbionics’ motion for enlargement of time, we reverse

the    judgment        and     dismiss     Symbionics’        appeal     for     lack    of

jurisdiction.


                                            I.

       This case arises out of a dispute between Symbionics, Inc.,

and its former president, Christopher J. Ortlieb.                              Symbionics

sued Ortlieb and other defendants 1 asserting claims of breach of

contract, breach of fiduciary duty, and tortious interference

with       contractual    relations,       among      other   state     law    causes    of


       1
       The named defendants included Appellees Amy Ortlieb; OPM,
LLC; and ATACC Systems, LLC. The claims against these Appellees
are not relevant to our disposition of this appeal.



                                               3
action.          Ortlieb     brought        various           counterclaims         against

Symbionics, including breach of contract, unjust enrichment, and

conversion.       Following a bench trial, the district court granted

judgment    for    Symbionics    as    to       its    breach       of    fiduciary      duty

claim, dismissed the remainder of Symbionics’ claims, and ruled

in favor of Ortlieb on his counterclaims.                           The district court

entered a final judgment on December 4, 2009.

     Symbionics filed a notice of appeal on January 5, 2010, one

day after the expiration of the thirty-day time limit prescribed

by Federal Rule of Appellate Procedure 4(a)(1).                                See Fed. R.

App. P. 26(a) (providing method for computing time period).                               On

January    7,    2010,    Symbionics    then          filed    a    timely      motion    for

extension of time to file a notice of appeal asking the court to

extend    the    filing    deadline    to       January       5,   and    thereby    render

timely Symbionics’ tardy notice of appeal.                         See Fed. R. App. P.

4(a)(5)(A)(i) (permitting party to move for extension of time to

file notice of appeal up to thirty days after expiration of

original    thirty-day        appeal        period).               In    the    memorandum

supporting its motion, Symbionics explained that a quirk in the

functionality of counsel’s computer calendar caused counsel to

miscalculate the deadline to appeal as January 5, 2010, rather

than the correct date of January 4, 2010.                               Counsel used the

Microsoft       Windows    Calendar,    a        standard          application      of    the

Microsoft Windows operating system, to compute the date on which

                                            4
the thirty-day period to appeal would end.                            The alleged glitch

occurred when, after counting twenty-seven days through December

31, 2009, counsel changed the month on the calendar display to

January in order to continue the computation.                          Counsel failed to

notice      that    the     calendar       did        not   automatically       advance     to

January        2010       but      instead            reverted    to     January         2009.

Consequently,           counsel    mistakenly          referenced      the    January     2009

calendar when he completed the calculation of the thirty-day

window      to     appeal,        which     resulted         in   counsel’s          erroneous

determination that the deadline was January 5.

      The        district        court      granted         Symbionics’        motion      for

enlargement of time after concluding that Symbionics’ delay was

the result of “excusable neglect” within the meaning of Rule

4(a)(5)(A).         Ortlieb timely cross-appealed on the ground that

the     district        court     abused     its        discretion     when     it     granted

Symbionics’ motion for an extension of time under the excusable

neglect standard.               For the reasons set forth below, we agree

with Ortlieb.

                                                II.

                                                 A.

      We      review      for     abuse    of     discretion      a    district        court’s

extension of the Rule 4(a) time to appeal upon a finding of

excusable neglect.              Thompson v. E.I. DuPont de Nemours & Co.,

Inc.,    76      F.3d    530,     534     (4th       Cir.   1996);     United    States     v.

                                                 5
Borromeo,    945    F.2d   750,    754    (4th   Cir.     1991).    An     abuse    of

discretion manifests “in a failure or refusal, either express or

implicit, actually to exercise discretion, deciding instead as

if by general rule, or even arbitrarily, as if neither by rule

nor discretion.”       James v. Jacobson, 6 F.3d 233, 239 (4th Cir.

1993).     An abuse of discretion may also occur when a district

court fails “to take into account judicially recognized factors

constraining its exercise,” or when its action is tainted “by

erroneous factual or legal premises.”             Id.



                                          B.

     In a civil suit, a notice of appeal must be filed within

thirty days of the entry of the judgment.                      Fed. R. App. P.

4(a)(1).     Compliance is “mandatory and jurisdictional” and the

district    court    may   extend        the   deadline    only    under    limited

circumstances.       Bowles v. Russell, 551 U.S. 205, 209-10 (2007)

(internal    quotation     marks    omitted).       Rule     4(a)(5)(A)     of     the

Federal Rules of Appellate Procedure permits a district court to

extend the time to file a notice of appeal if a party shows

“excusable neglect or good cause.” 2               Symbionics’ Rule 4(a)(5)




     2
         Federal Rule of Appellate Procedure 4(a)(5)(A) provides:

            Motion for Extension of Time

(Continued)
                                           6
motion asserted excusable neglect by counsel, and the district

court evaluated the motion on that ground.

      In Pioneer Investment Services Co. v. Brunswick Associates

Ltd. Partnership, 507 U.S. 380 (1993), the Supreme Court set

forth    the   factors    to   be    considered    in    determining    whether

excusable neglect exists.           They are: “[1] danger of prejudice to

the [opposing party], [2] the length of 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 (interpreting “excusable neglect” in

the     context   of    Rule   9006(b)(1)     of   the     Federal   Rules   of

Bankruptcy Procedure).         We adopted the Pioneer factors for the

purpose of Rule 4(a)(5) in Thompson v. E.I. DuPont de Nemours &

Co., Inc., 76 F.3d 530, 533 (4th Cir. 1996).

      The district court weighed the first, second, and fourth

factors in Symbionics’ favor, finding no prejudice to Ortlieb,



            (A) The district court may extend the time to file
            notice of appeal if:

            (i) a party so moves no later than 30 days after the
            time prescribed by this Rule 4(a) expires; and

            (ii) regardless of whether its motion is filed before
            or during the 30 days after the time prescribed by
            this Rule 4(a) expires, that party shows excusable
            neglect or good cause.



                                          7
no material delay in the proceedings, and a good faith attempt

by Symbionics to comply with the rules.                       We agree.        As a general

rule, the first two Pioneer factors will favor the moving party

because the time limits inherent in Rule 4(a)(5) necessarily

minimize the extent of any prejudice or delay.                                 Silivanch v.

Celebrity      Cruises,        Inc.,    333     F.3d       355,    366   (2d    Cir.    2003).

Furthermore, the fourth Pioneer factor is rarely material, as

the    absence      of   good     faith    is       seldom    at     issue     in    excusable

neglect cases.           Id.     Accordingly, the third Pioneer factor—the

untimely party’s reason for the delay—is the most important to

the excusable neglect inquiry.                  Thompson, 76 F.3d at 534.               It is

with respect to this critical third factor that our reasoning

departs from that of the district court.

       In    evaluating        Symbionics’          excuse    for    its     tardiness,    the

district court correctly noted that the conception of excusable

neglect in Pioneer encompasses “where appropriate, . . . late

filings      caused      by    inadvertence,         mistake,       or   carelessness,      as

well    as     by     intervening         circumstances             beyond     the     party’s

control.”           Pioneer,      507     U.S.        at     388.        The    court     also

acknowledged our observation in Thompson that “a mere concession

of palpable oversight or administrative failure generally has

been held to fall short of the necessary showing” for excusable

neglect.      Thompson, 76 F.3d at 534 (emphasis omitted) (quoting

In re O.P.M. Leasing Serv., Inc., 769 F.2d 911, 917 (2d Cir.

                                                8
1985)).     Nevertheless, the court determined that the reason for

Symbionics’       delay        was    more     than     “mere     administrative              error

attributable          solely     to    Symbionics’          negligence.”             J.A.      997.

Instead, the court attributed Symbionics’ belated filing to “the

less     than    completely           understood        electronic          workings          of    a

commonly       used    software        product[,]       .    .   .     extraneous         factors

independent       of    Symbionics’           negligence[,       and]       .    .   .   unusual

circumstances.”          J.A. 997-98.               Based upon these premises, the

district court decided that Symbionics’ failure to file a timely

notice    of    appeal        was     the    result    of    excusable          neglect.            We

disagree, and conclude that the court abused its discretion in

so deciding.

       With due respect for the unique position of the district

court to evaluate the circumstances relevant to an excusable

neglect     determination,             we     underscore         the     caution         of        our

precedent: “‘Excusable neglect’ is not easily demonstrated, nor

was it intended to be.”                 Thompson, 76 F.3d at 534.                    Indeed, “a

district       court     should        find    excusable         neglect        only     in        the

extraordinary         cases     where       injustice       would      otherwise         result.”

Id.     (internal       quotation           marks     omitted).             These        limiting

principles      confine        the     circumstances         under      which        a   district

court    may     properly        find       excusable       neglect,     particularly               in

instances       of     mere     “inadvertence,          mistake,       or       carelessness.”

Pioneer, 507 U.S. at 388.

                                                9
       We find nothing extraordinary or unusual about counsel’s

calendaring error that should relieve Symbionics of its duty to

comply with the time limit of Rule 4(a)(1).                         Counsel’s total

dependence        on   a   computer     application—the       operation       of    which

counsel did not completely comprehend—to determine the filing

deadline for a notice of appeal is neither “extraneous” to nor

“independent” of counsel’s negligence.                   See J.A. 997.          Rather,

the failure to discover that the calendar display had reverted

to January 2009, and the reliance on the resulting incorrect

deadline      computation,       are     the      very   essence      of      counsel’s

negligence here.             Furthermore, this neglect is precisely the

sort   of    “run-of-the-mill         inattentiveness        by    counsel”     that      we

have consistently declined to excuse in the past.                          See, e.g.,

Thompson, 76 F.3d at 535.



                                          III.

       For the foregoing reasons, we hold that the district court

abused      its    discretion     when     it     determined       that    Symbionics’

counsel’s         computer    calendaring        error   constituted          excusable

neglect.      We therefore reverse the order of the district court

granting     Symbionics’       motion    for     extension    of    time   to      file   a

notice of appeal and dismiss Symbionics’ underlying appeal for




                                           10
lack of jurisdiction. 3   We remand to the district court for a

determination of appropriate attorneys’ fees, if any, that might

be due under the parties’ employment agreement.

                                                  APPEAL DISMISSED;
                                                      CASE REMANDED




     3
       We acknowledge the potential hardship of being denied an
appeal, but we believe that the burden to Symbionics is
negligible here.    Had we reached the merits of Symbionics’
appeal, we would have affirmed the judgment of the district
court on the ground that the court’s findings were not
erroneous.



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