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ACTIVE GLASS CORP. v. ARCHITECTURAL & ORNAMENTAL I

October 10, 1995

ACTIVE GLASS CORP., Petitioner, against ARCHITECTURAL AND ORNAMENTAL IRON WORKERS LOCAL UNION 580, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, et al., Respondents.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge:

 This is an action to compel multi-party labor arbitration and to enjoin a bilateral arbitration between petitioner, Active Glass Corp. ("Active Glass"), and respondents, Architectural and Ornamental Iron workers Local Union 580, International Association of Bridge, Structural and Ornamental Workers, et al. ("Iron Workers"). In an Opinion and Order issued on February 8, 1995 (the "Order"), this Court denied Active Glass's motion to compel multi-party arbitration and granted Iron Workers' cross-motion to compel bilateral arbitration.

 Active Glass now moves, pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure, for an extension of time to file its notice of appeal on the grounds of excusable neglect. For the reasons stated below, the motion is granted.

 BACKGROUND

 Active Glass is a contractor in the building and construction industry in and around New York City. Iron Workers is a local labor union. Active Glass and Iron Workers were parties to a collective bargaining agreement (the "CBA") and a short term trust agreement according to which Active Glass was obliged to make contributions to employee benefit funds at rates prescribed in the CBA. See Order at 4. A dispute arose between the parties as to whether Active Glass had made the requisite contributions. On or about July 13, 1993, Iron Workers served Active Glass with a notice of intention to arbitrate the dispute in accordance with the provisions of the CBA. See id. at 3-4. Active Glass sought to stay the labor arbitration demanded by Iron Workers and to compel Iron Workers and other respondents to engage in multi-party arbitration. This Court denied Active Glass's request, and ordered that bilateral arbitration proceed between Active Glass and Iron Workers. See id. at 4.

 Ralph P. Katz, Esq., Active Glass's counsel ("Katz"), received notice of the Order, promptly informed his client what had transpired, and arranged to meet with the client to discuss the implications of the Order. Before he could meet with his client, however, Katz was diagnosed with cancer and was hospitalized immediately. See Affidavit of Ralph P. Katz, Esq., sworn to on March 27, 1995 ("Katz March Aff.") at 1, 3. He underwent chemotherapy and radiation treatment to his brain, and was unable to communicate on the telephone. See Affidavit of Ralph P. Katz, Esq., sworn to on April 10, 1995 ("Katz April Aff.") at 2. Katz instructed his secretary, Hedda Nussbaum ("Nussbaum"), to telephone the Clerk's Office "to request certain papers that customarily accompany an appealable paper." See Affidavit of Hedda Nussbaum, sworn to on March 27, 1995 ("Nussbaum Aff.") at 1; Katz March Aff. at 5. The Clerk's Office indicated erroneously that the above Order was not an appealable final judgment, and that the requested papers would be sent once a final judgment was filed. Nussbaum made repeated follow-up telephone calls, and was informed each time that the final judgment had not yet been filed. See id. at 2.

 The instant petition is one for an extension of time in which to file the notice of appeal pursuant to Rule 4(a)(5). Katz argues that the Clerk's Office's error, combined with his sudden illness, caused him inadvertently to miss the deadline to file a notice of appeal. Respondents argue that Active Glass cannot meet the test for excusable neglect because Katz's error was a mistake of law, and that he was not the only attorney for Active Glass at the time of the March 13, 1995 deadline to file a notice of appeal. Respondents claim that they would be prejudiced if the Court were to grant the petition.

 DISCUSSION

 "The district court, upon a showing of excusable neglect . . . may extend the time for filing a notice of appeal." Fed. R. App. P. 4(a)(5). The Supreme Court has stated that the term "excusable neglect" contemplates that "courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 123 L. Ed. 2d 74, 113 S. Ct. 1489, 1495 (1993). Although Pioneer refers to "excusable neglect" as it appears in Bankruptcy Rule 9006(b)(1), the Second Circuit has applied its reasoning in construing the same phrase in Rule 4 of the Federal Rules of Appellate Procedure. See Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) (extending Pioneer to Fed. R. App. P. 4(a)(5)); United States v. Hooper, 9 F.3d 257, 258 (2d Cir. 1993) (extending Pioneer to Fed. R. App. P. 4(b)).

 In construing "excusable neglect," Pioneer concluded that the determination should be "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer, 113 S. Ct. at 1498. In deciding whether to grant a reprieve for "excusable neglect," the Court considers three main factors: (1) the danger of prejudice to the nonmovant, (2) the length of delay and potential impact on judicial proceedings, and (3) the reason for the delay, including whether the movant acted in good faith and whether the circumstances were within the movant's reasonable control. See id.

 As a threshold matter, the Court must determine who neglected filing the notice of appeal. Respondents argue that because Katz retained the Greenspan law firm to help with his cases, the appeal could and should have been timely filed by Greenspan, notwithstanding Katz's incapacitation due to his illness. See Respondents', Iron Workers and Iron Workers' Funds, Memorandum of Law ("Iron Workers Mem.") at 2. They thus contend that the excusability or not of Greenspan's neglect is at issue here. Respondents are correct that Katz's illness would not determine the issue if Greenspan was co-counsel for Active Glass throughout. See Meza v. Washington State Dep't of Social & Health Servs., 683 F.2d 314, 315 (9th Cir. 1982) (other lawyers in office could have filed notice). But see Islamic Republic of Iran v. Boeing Co., 739 F.2d 464, 465 (9th Cir. 1984) (excuse for illness where ill attorney is only attorney responsible for case), cert. denied, 470 U.S. 1053, 84 L. Ed. 2d 819, 105 S. Ct. 1755 (1985). The retention, through intermediaries, of Greenspan's firm to assist with all of Katz's cases did not specifically add Greenspan as co-counsel to Active Glass on February 21. Only when Greenspan was specifically assigned to assist with Active Glass, with Active Glass's consent, did Greenspan become co-counsel. Active Glass's Reply states that Greenspan was specifically assigned to work on behalf of Active Glass after March 21 -- after the 30 day period for filing a notice of appeal had expired. See Active Glass Reply at 4. Therefore, only Katz's neglect in filing the notice of appeal is relevant to this motion.


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