Metropolitan News-Enterprise


Monday, May 10, 2004


Page 1


Ninth Circuit to Rule En Banc on Whether Missing Deadline to File Appeal Was ‘Excusable Neglect’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday agreed to decide whether a district judge abused his discretion when he retroactively extended the time to appeal based on evidence that the firm’s calendaring clerk failed to note the correct deadline.

In a brief order, Chief Judge Mary Schroeder said a majority of the court’s nonrecused active judges had voted to have an 11-judge panel review the Dec. 10 ruling in Pincay v. Andrews, 02-56577.

The appellants, Hall of Fame jockeys Laffit Pincay Jr. and Chris McCarron, won a judgment for nearly $9 million dollars against their former money managers. After more than 14 years of litigation, the three-judge panel voted to overturn an order by Senior U.S. District Judge Wm. Matthew Byrne that allows defendants Vincent and Robert Andrews to appeal that judgment.

In moving to extend the time to appeal, the defendants’ attorney filed a declaration stating that he had relied on the calendaring clerk, who had notified him by e-mail of the deadline. The clerk’s calculation was inaccurate, a fact the attorney said he did not become aware of until the deadline expired.

The clerk, according to the declaration and supporting evidence, mistakenly calculated the time to appeal as 60 days, rather than 30 days, from entry of judgment. Byrne granted additional time under Rule 4(a)(5) of the Federal Rules of Civil Procedure, which allows an extension if the motion is filed no later than 30 days after the deadline and the moving party shows “excusable neglect or good cause.”

Senior Judge John T. Noonan, writing for the three-judge panel, said the district judge erred because defense counsel did not show good cause or excusable neglect.

“What counsel did was to delegate a professional task to a nonprofessional to perform,” the judge wrote. “Knowledge of the law is a lawyer’s stock in trade. Bureaucratization of the law such that the lawyers can turn over to nonlawyers the lawyer’s knowledge of the law is not acceptable for our profession.”

 The lawyer, Noonan suggested, should have realized the problem when the calendaring clerk sent his e-mail reporting that “we get 60 days from date of entry of judgment, which was 7/03/02” to appeal. The lawyer’s failure to realize that the limit is 30 days cannot be excused, particularly since the attorney never claimed to have read the rules, the judge insisted.

 Noonan wrote:

 “Not knowing the law governing one’s practice is different from mere neglect, and it cannot be classed as excusable neglect. No axiom is more familiar than, ‘Ignorance of the law is no excuse.’ This ordinary rule is not a per se rule, but it ordinarily applies to those whose profession is the law.”

 Judge Kim M. Wardlaw concurred, while Judge Andrew T. Kleinfeld dissented.

While accepting “the majority’s exasperation at an experienced lawyer from a large and well-staffed firm carelessly delegating the reading of appellate rules to a nonlawyer and failing adequately to supervise,” the dissenting jurist said his colleagues owed greater deference to the district judge.

“Ignorance of the law and negligent delegation can indeed be classed as excusable neglect,” he argued, adding:

“It is the district court’s prerogative, not ours, to decide to grant or deny a motion for an expansion of time to file a notice of appeal. In this case there was no bad faith, no mischievous tactic, no prejudice to [plaintiffs] except the potential loss of the ‘windfall benefit’ of the Andrews’ missed deadline.”

Kleinfeld also warned of a possible unintended consequence of the ruling:

“Good lawyers commonly give their adversaries stipulations relieving them of inadvertent errors not going to the merits. The rigid per se rule the majority creates today will make it difficult for them to do so. Our court thereby damages the mutual civility and accommodation that characterizes the practice of law at its best. This unnecessary rule will be career-destroying for decent lawyers who make inadvertent errors.”

The case is Pincay v. Andrews, 02-56577.l


Copyright 2004, Metropolitan News Company