United States District Court, S.D. New York
April 15, 2004.
RAMON MORILLO, Plaintiff,
CITY OF NEW YORK, FAUSTO RODRIGUEZ, and UNKNOWN NUMBER OF NEW YORK CITY POLICE OFFICERS WHOSE IDENTITIES ARE NOT YET KNOWN, Defendants
The opinion of the court was delivered by: DENISE COTE, District Judge
In an Opinion issued on October 10, 2003, the motion by the City of
New York ("City") for summary judgment in this action brought pursuant to
Title 42, U.S. Code, Section 1983 was granted, and the cross
motion to extend time to serve an individual defendant was denied. The
plaintiff Ramon Morillo ("Morillo") now moves for an extension of his
time to file an appeal. For the following reasons, the motion is denied. Background
The action was filed on October 29, 2002. The plaintiff barely
participated in this litigation. He took no discovery and failed to
appear at a settlement conference held before a Magistrate Judge. When
the City moved for summary judgment, the plaintiff did not oppose the
motion, but moved instead to extend the time to serve an individual
defendant. For the reasons explained in the October 10 Opinion, that
cross motion was denied. Morillo v. City of New York, No. 02
Civ. 8647 (DLC), 2003 WL 22319609 (S.D.N.Y. Oct. 10, 2003).
Plaintiff's counsel was advised by telephone on October 10, 2003 that
the Opinion of that date had been issued. As stated in the Court's
Individual Practices in Civil Cases, a copy was made immediately
available to all counsel through a posting on CourtWeb. The October 10
Opinion was entered on the docket on October 16. An Order of October 21
instructed the Clerk of Court to close the case, which occurred on
October 24. Under Rule 4(a)(1)(A), the plaintiff's opportunity to file a
timely notice of appeal expired at the latest on November 24, 2003.*fn1
Through a motion filed on December 4,*fn2 plaintiff moves for an order pursuant to 28 U.S.C. § 2107(c)*fn3 to extend the
time for appeal for good cause shown.*fn4 Plaintiff's counsel asserts
that his office last had contact with the plaintiff in September 2003,
when the plaintiff stated that he was returning to the Dominican
Republic, where he lives and the country of which he is a citizen.
Despite being told at that time to call counsel with a telephone number
or address at which he could be reached, the plaintiff never did so, and
his attorney has been unable to reach him to obtain authorization to file
a notice of appeal or for any other purpose.
A scheduling order of January 7, 2004, required any opposition to the
motion to be served by January 23, and any reply by January 30. The City
has opposed the motion. The plaintiff did not reply to the opposition. It
is therefore deemed fully submitted.
Rule 4(a)(5) of the Federal Rules of Appellate Procedure provides in
pertinent part that The district court may extend the time to file a
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.
Rule 4(a)(5), Fed.R.App.P. Compliance with Rule 4(a) is "mandatory
and jurisdictional." Silivanch v. Celebrity Cruise, Inc.,
333 F.3d 355
, 363 (2d Cir. 2003) (citation omitted). If no notice of appeal
is filed before the deadline provided by Rule 4(a)(1), Fed.R. App. P.,
the Court of Appeals "lacks jurisdiction to hear the appeal."
Id. The power to extend this time limitation "is severely
circumscribed." Endicott Johnson Corp. v. Liberty Mut. Ins.
Co., 116 F.3d 53, 56 (2d Cir. 1997). One of the two potential
methods for doing so is through a showing of "excusable neglect or good
cause." Silivanch, 333 F.3d at 364 (citation omitted).
The Advisory Committee Notes for the 2002 Amendments to Rule 4,
Fed.R.App. P., explain that "excusable neglect" and "good cause" are
distinctly different standards:
The excusable neglect standard applies in
situations in which there is fault; in such
situations, the need for an extension is usually
occasioned by something within the control of the
movant. The good cause standard applies 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
Rule 4, Fed.R. App. P., Advisory Committee Notes, Subdivision
(a)(5)(A)(ii). The governing standard for Morillo's motion is clearly "excusable neglect" rather than "good cause" as the need
for the extension was caused by something within his control.*fn5
The Supreme Court has referred to "excusable neglect" as an "elastic
concept," insinuating that such a determination is "at bottom an
equitable one, taking account of all relevant circumstances surrounding
the party's omission." Pioneer Inv. Serv. Co. v. Brunswick Assoc.
Ltd. P'ship, 507 U.S. 380, 392, 395 (1993) (citation omitted).
Factors to be considered in evaluating excusable neglect include " the
danger of prejudice to the [non-movant],  the length of the delay and
its potential impact on judicial proceedings,  the reason for the
delay, including whether it was within reasonable control of the movant,
and  whether the movant acted in good faith." Silivanch, 333
F.3d at 366 (citing Pioneer, 507 U.S. at 395). Typically, the
first two Pioneer factors will favor the moving party:
[D]elay always will be minimal in actual if not
relative terms, and the prejudice to the
non-movant will often be negligible, since the
Rule requires a 4(a)(5) motion to be filed within
thirty days of the last day for filing a timely
notice of appeal. And rarely in the decided cases
is the absence of good faith at issue.
Id. (citation omitted). Despite the flexibility of the
"excusable neglect" standard and the existence of the four-factor test in
which three of the factors usually weigh in favor of the party seeking the extension, it is appropriate to focus on the
third factor: "the reason for the delay, including whether it was within
reasonable control of the movant." Id. (citation omitted).
Equitable considerations will "rarely if ever favor a party who fails to
follow the clear dictates of a court rule" and where "the rule is
entirely clear, we continue to expect that a party claiming excusable
neglect will, in the ordinary course lose under the Pioneer
test." Id. (citation omitted). See also
U.S. v. Hooper, 43 F.3d 26
, 28-29 (2d Cir. 1994) (per
curiam) (affirming denial of Rule 4(b) extension where delay resulted
from legal assistant's ignorance of the rules); Weinstock v. Cleary,
Gottlieb, Steen & Hamilton, 16 F.3d 501
, 503 (2d Cir. 1994)
(affirming denial of Rule 4(a)(5) extension where delay was due to a
misunderstanding of the rules, even though the rule in question was a "a
`trap' for the unsuspecting litigant.").
Morillo filed this motion within the time required to obtain an
extension under Rule 4(a)(5)(A). Even employing the liberal
Pioneer standard, however, the motion must be denied because
Morillo has not made a showing of excusable neglect or good cause.
Morillo has abandoned his lawsuit and made no contention that he was
unaware of, or misunderstood the rules governing his time to appeal. In
fact, there is no indication that he has authorized any appeal, even a
late-filed appeal. Conclusion
The plaintiff's motion to extend time to file an appeal is denied.