United States District Court, Eastern District of Pennsylvania
June 15, 2001
THE HOME INSURANCE CO., PLAINTIFF,
THE LAW OFFICES OF JONATHAN DEYOUNG, P.C., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
MEMORANDUM AND ORDER
AND NOW, this 13th day of June, 2001, it is hereby ORDERED
that defendant's motion for extension of time to file notice of
appeal (doc. no. 99) is DENIED. The court's order is based on
the following reasoning:
On August 1, 2000, the court granted plaintiffs motion for
summary judgment and entered judgment in favor of plaintiff and
against defendants. See doc. no. 89. One of the defendants,
Elva T. Hoisington, timely filed a motion for reconsideration of
the court's decision, but neglected to file a brief in support
of her motion, in violation of Rules 7.1(c) and 7.1(g) of the
Local Rules of Civil Procedure.*fn1 Following a hearing on
the motion for reconsideration, the court denied the motion on
the alternative grounds that: (1) there was no "`sound
rationale' for departing from the plain language of the Local
Rules of Civil Procedure;" and (2) the motion failed on its
merits. See doc. no. 95. The court's denial of the motion for
reconsideration was filed on September 15, 2000.
Defendant Hoisington filed a notice of appeal of the court's
denial of the motion for reconsideration. The filing was made on
October 17, 2000, one day after the deadline for Hoisington to
file her notice of appeal. See Fed.R.App.Pro. 4(a) (allowing
parties 30 days after the judgment or order appealed to file a
notice of appeal). Before the court is Hoisington's motion for
an extension of time to file a notice of appeal so that her
notice of appeal will be deemed timely filed.
Rule 4(a)(5) of the Federal Rules of Appellate Procedure
grants district courts the authority to extend the time for the
filing of a notice of appeal if: (1) the party seeking to appeal
files a motion no more than 30 days after the deadline for
filing its notice of appeal passes; and (2) the party shows
excusable neglect or good cause. See Fed.R.App.Pro. 4(a)(5).
In this case, Hoisington filed her motion for an extension of
time on November 14, 2001, see doc. no. 99, within the 30 day
time period after the deadline for filing its notice of appeal
under Fed.R.App.Pro. 4(a)(5)(i). The question thus presented
is whether Hoisington has shown excusable neglect or good cause,
and, if so, whether the court should exercise its discretion to
extend the filing time as Hoisington requests.
Because defendant Hoisington's apparent rationale is not easy
to follow, it is set out in full:
7. John J. Koresko, V., Counsel for Hoisington,
was not in his offices from Wednesday, September
13, through Friday, September 28, 2000, because he
was presenting tax seminars and meeting with
business associates in Georgia, Oregon,
California, Nebraska, Illinois, and Florida.
8. On or about Friday, September 15, 2000, the
resignation of Mr. Koresko's assistant became
9. On or about Monday, September 18, 2000, a new
assistant for Mr. Koresko began her employment.
Said new assistant resigned on or about Tuesday,
September 19, 2000.
10. On or about Wednesday, September 20, 2000, a
new parttime [sic] assistant was retained.
11. By telephone call on Wednesday, September 20,
Mr. Koresko advised his new parttime [sic]
assistant to calendar the order of September 13,
2000, for appeal within thirty (30) days from the
12. The parttime [sic] assistant calendared the
appeal for thirty (30) days from the date she
filed the document in counsel's offices, as
October 20, 2000.
13. Mr. Koresko was not in his offices from
Friday, October 6, through Monday, October 23,
2000, because he was presenting tax seminars in
Florida, Alabama, Oregon, and New Jersey.
14. On or about October 13, 2000, by telephone,
Mr. Koresko directed staff [sic] to file a Notice
of Appeal in accordance with Rule 4(a), F.R.A.P.
15. Said Notice of Appeal, dated October 13, 2000,
was filed and docketed on October 17, 2000.
16. Mr. Koresko believed the Notice of Appeal was
timely filed, having never seen the Order itself.
17. The Notice of Appeal should have been filed on
or before Sunday, October 15, 2000.
Def.'s Mot. for Extension of Time at 2. As the court understands
defendant Hoisington's version of the facts, counsel instructed
a newly hired part-time assistant of uncertain credentials,
experience, and without training, to calendar an appeal to be
taken "within thirty (30) days from the filing date." Id. at I
11. Throughout the period of time the appeal was to be filed,
counsel was out of the office "presenting tax seminars" and did
not insure that his telephone directive to his new "part-time"
assistant was duly carried out. Based on counsel's own
recitation, it is plain that counsel never reviewed the order
from which the appeal was taken, did not direct his "newly hired
part-time assistant" to calendar the appeal for a specific date,
and did not confirm that his directive concerning calendaring of
the appeal was duly carried out.
Defendant Hoisington's unverified factual averments,*fn2
even if true, do not meet the standard of excusable neglect. A
court should examine all of the circumstances surrounding a
party's neglect in determining whether the neglect is excusable.
See Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship,
507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); In re
Cendant Corp. Litig., No. 00-2185, 2001 WL 487903, at *12 (3d
Cir. May 9, 2001). The Third Circuit has identified some of the
factors relevant to this inquiry: (1) the danger of prejudice to
the nonmovant; (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; (4) whether the movant acted in good faith; (5) whether
the inadvertence reflected professional incompetence such as
ignorance of the rules of procedure; (6) whether an asserted
inadvertence reflects an easily manufactured excuse incapable of
verification by the court; and (7) whether the neglect resulted
from a complete lack
of diligence. See Cendant, 2001 WL 487903, at *12 (citing
Pioneer Inv., 507 U.S. at 395, 113 S.Ct. 1489, and Dominic v.
Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988)).
Although in this case the delay in filing the appeal was only
one day, and arguably the non-movant was not prejudiced,
application of all the other Cendant factors compel a finding
that the neglect was not excusable.
First, Mr. Koresko did not miss the deadline because of
circumstances outside of his control. Mr. Koresko acknowledges
that he never received the order for which the appeal was taken,
failed to instruct his "part-time newly retained assistant" as
to the date by which an appeal had to be filed, and thereafter
failed to confirm that his instruction had been duly carried
out. Allowing an assistant of unknown credentials, experience,
and training to determine the specific date by which an appeal
must be filed and then failing to supervise the new hired
assistant so as to insure that the appeal was indeed timely
filed reflects carelessness of a high degree on the part of
Second, the missed deadline for filing the notice of appeal
was the second consecutive deadline that Mr. Koresko missed in
this case. Mr. Koresko had violated Local Rule of Civil
Procedure 7.1 by failing to file a brief in support of his
motion for reconsideration only two months prior to missing the
notice of appeal deadline. This repeated disregard for the
court's procedural rules bespeaks at a minimum of lack of
diligence and at worst of bad faith.
Third, a finding that Mr. Koresko's neglect was not excusable
only prejudices Mr. Koresko, and not any client whose interests
he represents, because Mr. Koresko was assigned the rights in
this matter of Elva T. Hoisington, a named defendant, as part of
a settlement between Mr. Koresko and Ms. Hoisington of a suit
filed by Mr. Koresko against Ms. Hoisington in the Court of
Common Pleas of Montgomery County. See doc. no. 103
(describing the terms of the settlement). Therefore, this is not
a case where a failure to find inexcusable neglect punishes the
client for the lawyer's error.
Upon consideration of the totality of circumstances concerning
defendant's neglect, the court finds that: (1) the delay was
caused by counsel's own conduct wholly within his control; (2)
the reason given for the delay was unsatisfactory and is not
verifiable; and (3) the judicial proceedings were delayed as a
result of the neglect. Accordingly, the court finds that the
neglect at issue was not excusable.*fn3
For the reasons stated above, defendants' motion for an
extension of time to file a notice of appeal is denied.
AND IT IS SO ORDERED.