IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
August 11, 2009
JANICE GILMORE, PLAINTIFF,
MACY'S RETAIL HOLDINGS, DEFENDANT.
The opinion of the court was delivered by: Jerome B. Simandle United States District Judge
HON. JEROME B. SIMANDLE
SIMANDLE, District Judge
This matter is before the Court upon Plaintiff's unopposed motion [Docket Item 135] to file an untimely appeal of the Clerk's June 19, 2009 Order [Docket Item 134] to Tax Costs against Plaintiff.
THIS COURT FINDS AS FOLLOWS:
1. This was a case of alleged employment discrimination brought by Plaintiff, Janice Gilmore, against Defendant, Macy's Retail Holdings. Plaintiff asserted claims of disparate treatment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-2.1, et seq. On February 10, 2009, following a five-day jury trial, the jury returned a Verdict [Docket Item 120], finding in favor of Defendant on both counts.
2. On March 5, 2009, Plaintiff filed a Notice of Appeal [Docket Item 123] of the Final Judgment.*fn1 Plaintiff also seeks to appeal Magistrate Judge Donio's February 27, 2009 Order [Docket Item 122] granting Defendants' motion for sanctions. On March 9, 2009, Defendant filed a motion for costs and disbursements, pursuant to Rule 54(d)(1), Fed. R. Civ. P.,*fn2 which the Clerk of the Court granted in a June 19, 2009 Order [Docket Item 134].
3. On July 23, 2009, thirty-four days after the entry of the June 19, 2009 Order taxing costs, Plaintiff filed a "[r]equest for an extension for time to file an amended notice of appeal and amendment to appeal." (Docket Item 135 at 1.) In her motion, Plaintiff states that she "was not in the country during that week 6-20-09 thru 6-25-09" and that she "received the judgment dated 6-19-09 after [her] return." (Id.) She also states that she was confused as to how to appeal the Order taxing costs and that she wished to incorporate an appeal of that Order into her prior appeal. (Id.)
4. For the reasons that follow, the Court will grant Plaintiff's motion to file an untimely appeal of the June 19, 2009 Order.*fn3 Under the Federal Rules of Appellate Procedure, "[i]n a civil case . . . , the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed. R. App. P. 4(a)(1)(A). Rule 4(a)(5)(A), Fed. R. App. P., provides:
(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) 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.
Fed. R. App. P. 4(a)(5)(A).
5. In determining whether a party has shown excusable neglect or good cause for its failure to file a timely appeal, the Court applies the four-factor test set forth by the Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship., 507 U.S. 380, 395-97 (1993). See In re Diet Drugs Product Liability Litigation, 401 F.3d 143, 153-54 (3d Cir. 2005) (agreeing with the conclusion of multiple circuits that Pioneer applies "in the context of filing for appeal pursuant to Fed. R. App. P. 4(a)(5)"). The four Pioneer factors are: " 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 reasonable control of the movant, and  whether the movant acted in good faith." Pioneer, 507 U.S. at 395.
6. The Court will grant Plaintiff leave to file a notice of appeal of the June 19, 2009 Order.*fn4 First and most significantly, the Court does not find that Defendant would be prejudiced if such leave were granted. Defendant has not opposed Plaintiff's motion, and the request for leave to file an untimely appeal was filed just four days after the date for filing a timely appeal expired. See id. Second, and relatedly, the length of the delay and its impact on the proceedings in this case are minimal. See id. Plaintiff's motion was filed just four days late, and any delay in her appeal of the Order taxing costs has no impact on her appeal from the Final Judgment herein as a matter of law. See Fed. R. Civ. P. 58(e) ("the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs . . ."); see also Note 3, supra. Finally, with regard to the reasons for Plaintiff's delay and whether Plaintiff has acted in good faith, see Pioneer, 507 U.S. at 395, the Court takes note of Plaintiff's pro se status in prosecuting her appeal, see Note 1, supra, and her stated confusion over how an appeal of the Order taxing costs would be impacted by her prior appeal of the Final Judgment. While "pro se litigants are not excused from compliance with procedural rules," Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008), there is nothing herein to suggest that Plaintiff's delay was the product of bad faith, and this fact, combined with the absence of prejudice to Defendant and the minimal impact of the delay on the judicial proceedings, convinces the Court that Plaintiff's application for leave to file an untimely appeal should be granted.
7. For the reasons set forth above, the Court will grant Plaintiff's motion for leave to file an untimely appeal of the Clerk's June 19, 2009 Order to Tax Costs against Plaintiff.
Plaintiff must file her notice of appeal of that Order within ten (10) days of the entry of the accompanying Order. See Fed. R. App. P. 4(a)(5)(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"). The accompanying Order is entered.