On Appeal from the District Court of the Virgin Islands (D.C. Civil No. 2-06-cv-00173) District Judge: Hon. Timothy J. Savage
The opinion of the court was delivered by: Cowen, Circuit Judge.
BEFORE: CHAGARES, JORDAN and COWEN, Circuit Judges
Plaintiff Glenford Ragguette appeals from the order of the District Court of the Virgin Islands granting the motion for summary judgment filed by Defendant Premier Wines and Spirits, Ltd. In turn, Premier appeals from the order of the District Court granting Ragguette's motion for an extension of time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5). We hold that the District Court abused its discretion by finding that Ragguette established "excusable neglect" under this rule. We accordingly determine that the motion for an extension of time to file a notice of appeal under Rule 4(a)(5) was improvidently granted. We will therefore dismiss Ragguette's appeal for lack of appellate jurisdiction.
Ragguette alleged a number of employment discrimination and related claims against his former employer, Premier. Throughout this litigation, Ragguette has been represented by attorneys from a firm currently known as Lee J. Rohn & Associates-and primarily by Lee J. Rohn, Esquire, herself.
In a January 5, 2010 order, the District Court granted Premier's summary judgment motion and entered judgment in favor of Premier and against Ragguette. The District Court provided its reasons for this determination in an accompanying memorandum opinion entered on the same day.
Ragguette's counsel failed to file a notice of appeal within 30 days of the judgment or order pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A). On January 13, 2010, Premier filed a motion for attorneys' fees and costs under Federal Rule of Civil Procedure 68, specifically asking for the award to be directed (jointly and severally) against Ragguette and his counsel. Ragguette submitted an opposition to this fee motion on January 28, 2010. In a February 8, 2010 order, the District Court scheduled a fee hearing for February 23, 2010. But, on February 24, 2010, the hearing was rescheduled for March 1, 2010. Following this hearing, Premier filed a contested motion to amend its fee motion, requesting, among other things, a fee award directed against Rohn in her individual capacity. The original motion and the motion to amend, however, were subsequently withdrawn by Premier.
On March 5, 2010, Ragguette filed a motion for issuance of an order pursuant to Federal Rule of Civil Procedure 58(e), or, in the alternative, for an order granting an extension of time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5). With respect to the alternative form of relief, he argued, inter alia, that his attorney's failure to file a timely notice of appeal was caused by excusable neglect. In short:
Because of trial preparation for several other cases, counsel failed to actually issue the computer task. Specifically, counsel annotated the order as to appeal issues and provided it to the secretary on the case. The procedure in the office is that a task should have been generated by counsel to file the notice of appeal at the same time. The secretary scanned the order with the annotation in to the system on January 11, 2010 (Exhibit 1)but because there was no task did not prepare the appeal. Counsel was unaware that the notice of appeal had not been e-filed and did not discover the same until preparing for the hearing on the fee issue when she did not find a notice of appeal in the computer file.
In this case, the failure to file a timely notice of appeal was due to excusable neglect, so as to warrant the granting of the motion for extension of time. The objective record shows that lead counsel for Plaintiff "annotated the Memorandum Opinion of the summary judgment ruling to be used to draft the notice of appeal to move to appeal on the grounds as noted in the annotated document, and on the ground of the rulings denying discovery. See screen shot showing date the annotated judgment was scanned as of January 11, 2010 (Exhibit 1). Counsel had requested that the annotated motion be scanned into the appeals file. See, Exhibit 1, the annotations on the Memorandum. Counsel was in trial and in mediations and then off island as set forth herein.
It has now come to counsel's attention that all that was done was that the annotated Memorandum Opinion was scanned. The fact that counsel was off-island, and the fact that in her absence, the notice would have been prepared and reviewed and filed by another staff attorney, Counsel reasonably thought that the task had been issued.
(A343-A344 (error in original).) A so-called "screen shot" (which listed a pdf file entitled "Annotations-re-Memorandum-Opinion-and-Thoughts-for-Appeal-01/11/2010" and indicated that this document was last modified at 7:44 a.m. on January 11, 2010) was attached as Exhibit 1 to Ragguette's motion. (Dist. Ct. Dkt. Entry #137-1.)
Premier filed its opposition to this motion on March 16, 2010, and Ragguette submitted a reply on April 1, 2010. He also submitted an affirmation from Rohn herself as well as an annotated copy of the District Court's January 5, 2010 memorandum opinion (attached as Exhibit A). Rohn provided the following explanation for why the notice of appeal had not been filed:
2. As represented in the Motion for Issuance of An Order pursuant Pursunat-to-FRCP 58(e)-or-in-the-Alternative-an-Order-Granting-an-Extension-of-Time-to-File-a-Notice-of-Appeal-03-05-2010 after annotating the court's ruling, I submitted to my legal assistant and new motions attorney the annotated ruling, with the intention that a notice of appeal should be filed on the grounds as annotated in the ruling. See, Exhibit A,Annotated Ruling.
3. I had a mental lapse and failed to realize I was working with my relatively new motion attorney and not my former associate and partner of over 11 years who would have correctly interpreted my notes and automatically calendared and drafted a notice of appeal without the need of a specific task, instead of simply filing the annotated decision. I further intended to issue a task and reasonably thought I had done so. It appears I either didn't send the task or didn't complete the procedure as no task was generated by the computer.
4. That my intention was to appeal the ruling is manifest from the annotated decision.
5. Given the press of matters requiring my attention, matters that are objectively verifiable, it is understandable and reasonable under the circumstances that this oversight occurred.
6. I honestly believed that a notice of appeal was filed in accordance with my annotations on the decision.
7. I did not mention the intent to appeal during the hearing regarding the motion for fees because I wanted to verify my records as to what occurred.
(A355-A356 (errors in original).) There were a number of handwritten comments and notations on the annotated memorandum opinion. Most significantly, the following comment was written at the top of the first page: "*Scan in as ‗thoughts Re appeal'." (A357.)
The District Court denied Ragguette's motion on May 14, 2010. Ragguette filed a notice of appeal on May 20, 2010 (a notice of appeal was previously entered on the docket on May 17, 2010, but Ragguette was then directed to refile using the correct prompt). On April 19, 2011, we upheld the District Court's denial of his request for an order under Federal Rule of Civil Procedure 58(e) because Premier never filed the appropriate motion for fees and costs pursuant to Federal Rule of Civil Procedure 54(d)(2). However, we vacated the District Court's denial of his request for relief under Rule 4(a)(5) and remanded "the case to the District Court to analyze whether the neglect at issue in this case was excusable under the Pioneer standard." Ragguette v. Premier Wines & Spirits, Ltd., 424 F. App'x 155, 157 (3d Cir. 2011) (footnote omitted). We explained that the Supreme Court's ruling in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993), established an equitable approach to the "excusable neglect" determination. While a court must still take into account all of the relevant circumstances, "Pioneer provides four factors to consider when making this equitable determination: (1) the danger of prejudice to the non-movant; (2) the length of the delay and the 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." Ragguette, 424 F. App'x at 156-57 (citing Pioneer, 507 U.S. at 395). We concluded that the District Court abused its discretion by disposing of the Rule 4(a)(5) motion "‗without an opinion, without a reason, and more importantly, without reference to the Pioneer four-factor balancing standard.'" Id. at 157 (quoting In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir. 2005))).
On May 16, 2011, Premier filed its supplemental opposition to the Rule 4(a)(5) motion. Among other things, Premier referred to Ragguette's testimony at a recusal hearing held before the District Court on January 26, 2011. It also submitted a letter to Ragguette from a legal assistant at the Rohn law firm named Enith Abraham, which was dated January 14, 2000 and stated that the enclosed documents were being returned to him for his records. Most significantly, Premier attached as an exhibit a series of e-mails exchanged by Rohn and Glenda Cameron, Esquire (who was then working with the ...