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Jeffrey Harley v. Timothy Geithner

December 23, 2010

JEFFREY HARLEY,
PLAINTIFF,
v.
TIMOTHY GEITHNER, DEFENDANT.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

SIMANDLE, District Judge:

MEMORANDUM OPINION

This matter is before the Court upon Plaintiff Jeffrey Harley's motion pursuant to Rule 4(a)(5)(A), Fed. R. App. P., for an extension of time to file notice of appeal of the Court's September 29, 2010 Order granting summary judgment in favor of Defendant [Docket Item 75]. Defendant Geithner opposes the motion. THE COURT FINDS AS FOLLOWS:

1. This matter arises from Plaintiff's discrimination and retaliation suit against his employer, the Internal Revenue Service. Plaintiff filed his complaint on July 31, 2007 [Docket Item 1]. On May 10, 2010, Defendant moved for summary judgment [Docket Item 54]. On September 29, 2010, the Court granted Defendant's motion in an Opinion and Order entering final judgment in favor of Defendant [Docket Items 70 & 71].

2. On November 30, 2010, Plaintiff filed his notice of appeal with this Court via electronic filing [Docket Item 72]. The notice explains that Plaintiff's attorney had previously sent the notice of appeal by mail to the wrong court (the New Jersey Superior Court Appellate Division) "by accident." (Notice of Appeal Cover Letter at 2). Plaintiff states that the original notice was mailed on November 19, 2010, ten days prior to the filing deadline. (Certification of Counsel ¶ 6.) Plaintiff's attorney states that immediately upon discovery of the error, on November 30, 2010, the notice of appeal was electronically filed with the U.S. District Court for the District of New Jersey, in an "attempt[] to correct the error." (Id.)

3. On December 2, 2010, the appeal was docketed by the Clerk of the Third Circuit Court of Appeals and assigned a case number. [Docket Item 73.] On that same day, the Clerk notified the parties that the appeal had been listed for possible dismissal due to jurisdictional defect, because "the notice of appeal was not filed within the time prescribed by Fed. R. App. P. 4(a)(1)." (Notice of Appeal Ex. G; Kirschbaum Decl. Ex. A.) On December 8, 2010, Plaintiff filed the present motion for an extension of time to file notice of appeal under Fed. R. App. P. 4(a)(5), amended on December 9 to include attached documents [Docket Items 74 & 75].

4. Under the Federal Rules of Appellate Procedure, "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. When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered." Fed. R. App. P. 4(a)(1)(A), (B) (internal numbering omitted). Therefore, the notice of appeal in this case would have been timely filed up to Monday, November 29, 2010. Plaintiff's notice of appeal was untimely by one day.

5. However, the Federal Rules of Appellate Procedure give the District Court discretion to grant an extension of time to file notice of appeal. Rule 4(a)(5)(A) provides:

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).

6. In determining whether a party has shown excusable neglect 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: "[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential 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." Pioneer, 507 U.S. at 395.

7. Initially, the Court concludes that the motion presently under consideration is not untimely under Rule 4(a)(5)(A)(i). "[T]o obtain relief under Rule 4(a)(5), [a prospective appellant is] . . . required to move for an extension of time no later than 30 days after the time for appeal expired." Cummings v. Jackson, No. 07-4046, 2008 WL 5377782, at *5 (D.N.J. Dec. 18, 2008) (citation omitted, emphasis added). In the instant case, Plaintiff moved for an extension of time to file his notice of appeal on December 9, 2010, ten days after the deadline of November 29, 2010. Thus, the Court has the authority to entertain Plaintiff's motion.

8. Turning to Rule 4(a)(5)(A)(ii), the Court concludes that excusable neglect has been shown here because the Pioneer factors weigh in favor of granting Plaintiff's motion. As to the first factor, "the danger of prejudice to the [non-movant]," Pioneer, 507 U.S. at 395, the Court finds that the risk of prejudice to Defendant is insubstantial. Even assuming that Plaintiff did not serve Defendant with notice of appeal by mail on November 19 (a fact on which the record is silent), Defendant was notified no more than one day after the November 29 deadline that Plaintiff intended to appeal this Court's order. Defendant argues that the one-day delay, as part of a general pattern of delay in this case, has "collectively prejudiced Defendant and its employees by forcing them to live indefinitely with this litigation looming." (Opp'n to Mot. Extend Time at 18). While the Court agrees that this case has experienced multiple delays, not all of them were ...


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