USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________
Nos. 93-2010
93-2217
ANA VIRELLA-NIEVES, ET AL.,
Plaintiffs, Appellees,
v.
BRIGGS & STRATTON CORPORATION, ET AL.,
Defendants, Appellees.
____________________
AIRCAP INDUSTRIES, INC., AND CIGNA INSURANCE COMPANY,
Defendants, Appellants.
____________________
No. 93-2229
ANA VIRELLA-NIEVES, ET AL.,
Plaintiffs, Appellants,
v.
AIRCAP CORPORATION, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________

Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Selya, Circuit Judge.
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____________________

Steven C. Lausell with whom Manuel San Juan was on brief for
_________________
_______________
plaintiffs.
Francisco J. Colon-Pagan with whom Keith A. Vanderburg was
_________________________
____________________
on brief for defendants.
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May 4, 1995
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COFFIN, Senior Circuit Judge.

_____________________
that

defendants had

"good cause"

The

district court, finding

for their

failure to

file a

notice of appeal within

the applicable thirty-day period, issued

an order extending their

time to file an appeal.

Because "good

cause" is not the proper basis for an extension of time under the
circumstances present here, we must vacate the court's order.
I. Background
__________
After trial, the
their product
post-trial
1993.

jury returned a verdict for

liability action.

motions, which were denied

The clerk

It is uncontested

that, on

These copies

for

court's orders

them on July 13.

clerk's office

defendants and that defendants

showed that the judge had

upon the

the running

notice of appeal.
In other
the

on July 12,

mailed

received

signed the orders

and filed them on

July 12.

submit, however, that they did not indicate that they

had been entered

point

by the court

July 14, the

clerk's office had received

Defendants

filed timely

that same day and docketed

copies of the orders to

and the

sides then

of court received and filed the

denying the motions

them.

Both

plaintiffs on

court docket, which

of the

thirty-day

is the

starting

period for

filing a

See Fed. R. App. P. 4(a).

___

words, defendants knew

post-trial motions on July

that the court

12, that the

had denied

clerk's office had

received and filed the court's orders on that same day, and
all that remained for

the clock to begin

for

was for the clerk's

taking an appeal

ministerial

task

of

entering
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running on the

that

period

office to perform the

notation

onto

the

docket

indicating

that the

despite this

post-trial motions had

knowledge, defendants

been denied.

did nothing until

August 9,

when the secretary of defendants' lead counsel returned

vacation.

Yet,

from her

It was only upon her return that defendants first made

an attempt

to find out

if the

orders had been

entered on

the

docket.
According to the secretary's
the clerk's

office "on

orders

had been

stated

that

various occasions" to

docketed.

"each time"

"clerk's office

Though she
she called,

personnel" that

Faced with what should

unsworn statement, she

ascertain if

provided no
she

called

the

dates, she

was told

by unnamed

the computer system

was down.1

have been the alarming prospect

that, if

the clerk's office had docketed the orders on the day it received
them,
did

the time to appeal would expire August 12, defense counsel

nothing

more

than

unsuccessful attempts.
told that the orders
did

not

Instead,

think to
upon

assumed that

have

his

secretary

It was not until August 16

had been docketed.

inquire when
____

learning that
he would

continue

the

the

Still,

receive written

that she was

defense counsel

orders had

orders had

her

been docketed.

been

entered, he

notice from

the clerk's

office advising

him of

the date

of their

entry,

and took

no

further steps to learn this crucial fact himself.

It was only during a chance telephone
August 16

conversation later on

that plaintiffs' counsel mentioned

to defense counsel

____________________

1 She stated that on one occasion she was told by "Nancy" of

the clerk's office to try again the next day.
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that the
period

orders had

been entered on

had expired.

defense

Sometime

counsel filed

July 13.

The

during the evening

motion pursuant

to

thirty-day

of August 18,

Fed. R.

App.

P.

4(a)(5) requesting an extension of time to file an appeal "on the

grounds of excusable neglect
the motion by margin
the

requested

Granted."

or good cause."

court granted

order, writing only: "For good

extension of

time to

Defendants then appealed.

their cross appeal.

The

file

Notice of

cause shown

Appeal is

Plaintiffs thereafter filed

See Fed. R. App. P. 4(a)(3).

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II. Discussion
__________

Pursuant to Fed.

R. Civ. P.

77(d), the

clerk of court

is

charged with the responsibility of mailing notice of the entry of

court orders and judgments to all non-defaulted parties.
Rule

itself plainly

"does not affect the

court to

states that

the clerk's

failure to

time to appeal or relieve

relieve a party for

But the

do so

or authorize the

failure to appeal within

the time

allowed, except as permitted in Rule 4(a) of the Federal Rules of

Appellate Procedure."
the

Thus,

since lack of receipt of

notice of

entry of the dispositive orders is the basic reason advanced

for defendants' delinquency, we turn to Fed. R. App. P. 4(a).

Before Rule 4(a) was amended in 1991, only
4(a)(5), gave
of

district judges the authority

time to file appeals.

court, upon a

showing of

extend the time for filing

That section

one subdivision,

to grant extensions

provides: "The district

excusable neglect or

good cause,

a notice of appeal upon motion

may

filed

not later than 30 days after the expiration" of the original time
-5-

period allowed.

Fed. R.

appeals have read this

App.

P. 4(a)(5).

Seven courts

of

rule to mean that the good cause standard

is applicable

only to requests

expiration of

the original

while

the excusable neglect

made

afterward.

for extensions

period for

made before

filing a timely

standard applies if

See Pontarelli
___ __________

v. Stone, 930
_____

(1st Cir. 1991) (collecting cases from

the

appeal,

the request is

F.2d 104, 109-10

the Second, Fifth, Sixth,

Seventh, Eighth, Ninth and Eleventh Circuits).2

We have taken a different view.

As we first noted almost a

decade ago, Rule 4(a)(5) "expressly recognizes `good cause' as

basis for extension both
appeal time."
1986).

Scarpa
______

before and after the expiration

v. Murphy, 782
______

F.2d 300,

of the

301 (1st

Cir.

Scarpa involved a request for an extension made after the

______

period had expired,

but was

occasioned by no

part of the would-be appellant.

"neglect" on

delay by the United States

in

court.

delivering it

to

should have been granted

being

filed late,

Thus we

said that

Postal Service

the extension

because there was good cause

rather

otherwise, by the appellant.

the

Rather, the notice of appeal was

filed late because of

its

than any

neglect,

shown for

excusable or

Id.
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____________________

2 These courts have relied heavily upon the advisory

committee note to the 1979 amendment to Rule 4(a)(5) in reaching
this holding.
Before 1979, a district court was empowered to
extend the period for filing an appeal only upon a finding of
excusable neglect.
The advisory committee wrote that while
excusable neglect "was an appropriate standard in cases in which
the motion is made after the time for filing the notice of appeal
has run, and remains so, it has never fit exactly the situation
in which the appellant seeks an extension before the expiration
of the initial time.
In such a case `good cause' . . . seems
more appropriate."

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More recently, in Pontarelli

__________

v. Stone, 930 F.2d at

_____

110, we

reiterated that a showing of good cause could justify granting an

extension even
expired.
distinct
the

But we also
spheres.

1979

`excusable

extension

traditional

The good

neglect'

in

"neither

had

the two standards occupy

displaces

nor

customarily

was added by
overlaps

employed

under

the

the

Rather, it adds a limited basis for granting

those

`excusable

circumstances were
was

time period

cause standard, which

analysis

Id.
___

the initial

made clear that

amendment,

earlier rule."
an

if requested after

circumstances
neglect'

found to be

no "neglect" by

that

are

analysis."

Id.
___

present in Scarpa
______

the would-be appellant

"unsuited

to

Such

because there

at all, so

that it

made no sense to analyze whether the neglect was "excusable."

Such
that

is not the

case here.

Defendants

the dispositive

orders had

been signed

received by the clerk's office on July 12.

they waited almost the

By

were put on notice

by the

judge and

their own choice,

full thirty days, until August

9, before

even attempting to learn when the orders had been docketed.

telephonic

inquiries proved

unavailing,

they took

steps, but simply allowed the time to expire.

reason for their

failure, for

example, to send

court to look up the relevant date, and we see

[their] control," id. at 111
___

They

no

further

presented no

a messenger

Rule

4(a)(5), it

-- at least on this record

is clear

that only

to

no "forces beyond

-- that

prevented them from taking this eminently reasonable step.

under

When

Thus,

excusable neglect,

rather than good cause, could justify granting an extension.

See
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Gochis v. Allstate, 16 F.3d 12, 14 (1st Cir. 1994) (where failure

______
________
to file timely appeal
forces

beyond

applies).

The

is due to party's own neglect, rather than

party's

control,

determination of

excusable
whether a

neglect
party's

standard

neglect is

excusable "is at bottom an equitable one, taking into account all

of

the relevant circumstances surrounding the party's omission."

Pioneer Inv. Servs. Co.

________________________

v. Brunswick Assocs. Ltd. Partnership,

___________________________________

113 S.

Ct.

1489, 1498

relevant factors).3
must

vacate the

(giving non-exhaustive

No such determination having

grant of

Since plaintiffs'
additional time

(1993)

additional time

cross appeal
granted

to

defendants,

of

been made, we

to file

was timely

list

the appeal.

only because
see Fed.
___

R.

of the
App.

P.

4(a)(3), we have jurisdiction over neither party's appeal.

Two observations remain.
1991,

Rule 4(a)(5)

time to appeal.
Rule

4(a)

situation in

was

We already have noted that, before

was the

sole basis for

Defendants
amended in

granting additional

apparently failed
1991

which they found

to

respond

themselves.

The

to realize

that

precisely to

the

new subdivision

provides:

The district court, if it finds (a) that a party entitled to

notice of the entry of a judgment or order did not receive
such notice from the clerk or any party within 21 days of
____________________
3 We agree with the

Tenth Circuit that Pioneer's exposition

_______
of excusable neglect, though made in the context of late
bankruptcy filings, applies equally to Fed. R. App. P. 4(a)(5).
See City of Chanute, Kansas v. Williams Nat. Gas Co., 31 F.3d
___ ________________________
______________________
1041, 1046 (1994). We may add one further rationale to those
given by the Tenth Circuit for this conclusion: the Pioneer Court
_______
specifically cited conflict among the circuits in interpreting
excusable neglect in Rule 4(a)(5) as a reason for granting
certiorari. Pioneer, 113 S. Ct. at 1494 n.3.
_______
-8-

its entry and (b) that no party would be prejudiced, may,

upon motion filed within 180 days of entry of the judgment
or order or within 7 days of receipt of such notice,
whichever is earlier, reopen the time for appeal.
Fed. R. App.

P. 4(a)(6).

This section may supply

basis for the district court

to

appeal.

district

Of course, it

judge

findings.

had no

an alternate

to grant defendants additional time

was not

occasion

relied upon

to

make the

below, and the

requisite

fact-

We offer no speculation on whether defendants may now

rely upon this provision or,

if so, how the district judge

will

find the relevant facts.

Finally, at
settlement.

oral argument we

They did so, to no avail.

remand, it seems especially

Not only is

urged the parties

to explore

Now, in the light of this

appropriate to renew the suggestion.

there no guarantee at this juncture

that the appeal

(and the cross appeal) can go forward, but we are

skeptical that

any appellant would eventually succeed in reversing the judgments

below.

Accordingly, the order granting additional time to file this

appeal

is

VACATED

and

the case

consistent with this opinion.

is

REMANDED

for proceedings

Costs to plaintiffs.

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