The opinion of the court was delivered by: The Honorable Freda L. Wolfson, United States District Judge
Presently before the Court is Plaintiff Barbara Kanoff's ("Plaintiff") motion for extension of time within which to file a notice of appeal pursuant to Fed. R. App. P. 4. Defendant Better Life Renting Corp. and Lefrak Organizations, Inc. (collectively "Defendants") opposed the motion. No oral argument was heard. For the reasons set forth below, Plaintiff's motion is DENIED.
The facts of this case were recited in this Court's February 14, 2008 Opinion. In the interest of judicial economy, the facts recounted here will only be pertinent to this motion. On February 14, 2008, this Court entered an order granting Defendant's motion to dismiss the Complaint without prejudice and to compel arbitration. Pursuant to Fed. R. App. P. 4(a)(1)(A), Plaintiff was required to file a notice of appeal with the Court within thirty days from the date of the Order, which was March 15, 2008. Because March 15th was a Saturday, Plaintiff was required to file the notice of appeal no later than Monday, March 17, 2008. However, the notice of appeal was not filed until March 26, 2008. On March 31, 2008, Plaintiff moved before this Court for an extension of time within which to file the appeal. In the certification by Plaintiff's counsel, Mr. Craner, in support of the motion, counsel states that he failed to electronically file the notice of appeal. He explains that he "did not appreciate that a notice of appeal was an appropriate e-file document." Craner's Cert. at ¶ 3. Rather, counsel intended to mail the notice of appeal on March 11, 2008 to the Clerk of the District Court in Newark. However, both the letter transmitting the notice of appeal and the envelope were misaddressed. In addition, the notice of appeal itself contained the wrong docket number. Id. at ¶ 6. Plaintiff first learned of his mistakes when Defendants brought the matter to his attention. Id. at ¶ 5.*fn1
Federal Rule of Appellate Procedure 4(a)(5) provides that:
(A) 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) that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.
Fed. R. App. P. 4(a)(5). Under this rule, if a party files a notice of appeal after the thirty day time period provided under Rule 4(a)(5)(A)(i), the party must show that the lateness of the filing was due to either excusable neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(ii). In defining these terms, the Third Circuit relies on the United States Supreme Court holding in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). See Manus Corp. v. NRG Energy, Inc. (In re O'Brien Envtl. Energy, Inc.), 188 F.3d 116, 118 (3d Cir. 1999); Consolidated Freightways Corporation of Delaware v. Larson, 827 F.2d 916 (3d Cir. 1987).
In discussing the term "excusable neglect," the Supreme Court in Pioneer stated that the circumstances to consider 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 the ...