United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE
APPEAL RE: DKT. NO. 182
J. DAVILA, UNITED STATES DISTRICT JUDGE
Charles Guenther (“Plaintiff”) alleged in this
action that Defendants Lockheed Martin Corporation and
Lockheed Martin Corporation Retirement Plan for Certain
Salaried Employees (collectively, “Lockheed”)
breached a fiduciary duty in violation of the Employee
Retirement Income Security Act of 1974 by failing to make
accurate representations concerning Plaintiff's ability
to “bridge” prior employment service credit with
future service credit. Summary judgment was entered in favor
of Defendant on September 1, 2017. Dkt. Nos. 168, 169.
Plaintiff filed a notice of appeal from the judgment on
October 2, 2017. Dkt. No. 172.
also filed a consolidated motion for relief from judgment
under Federal Rules of Civil Procedure 59(e) and 60(b). Dkt.
No. 170. The court denied the motion by written order filed
on January 9, 2018. Dkt. No. 181. The deadline to file a
notice of appeal from that order was February 8, 2018.
counsel missed that deadline. He was in Southern California
at an arbitration hearing from January 24th though January
26, 2018, and then came down with the flu on January 28,
2018. From January 28th through February 5, 2018,
Plaintiff's counsel had a fever of 101 degrees, felt
physically and cognitively debilitated, spent most of each
day in bed, and was unable to do much substantive work.
Though the fever receded the week of February 5th,
Plaintiff's counsel remained ill, had difficulty
concentrating, and went home from work early each day that
to Plaintiff's counsel, no other attorney was assigned to
monitor the February 8th appeal deadline. He also states that
the paralegals and other staff at his office had no reason to
apprehend the importance of the deadline since an appeal had
already been taken from the judgment, and Plaintiff's
counsel had not informed them of the second appeal deadline.
now moves to extend the time to file an appeal from the order
denying his post-judgment motion. Dkt. No. 182. Lockheed
opposes. The matter is suitable for decision without oral
argument pursuant to Civil Local Rule 7-1(b). The hearing
scheduled for May 10, 2018, is therefore VACATED, and the
court finds, concludes and orders as follows:
Federal Rule of Appellate Procedure 4(a)(1) requires a party
to a civil case to file a notice of appeal with the district
court clerk “within 30 days after entry of the judgment
or order appealed from.” The district court may extend
this deadline if (1) a party so moves no later than 30 days
after the time prescribed by this Rule 4(a) expires, ”
and (2) “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).
There is no dispute this motion was timely-filed under the
first part of Rule 4(a)(5). Only the second part, and
particularly its excusable neglect standard, is at issue.
Ninth Circuit requires that district courts apply the
four-factor Pioneer/Briones equitable balancing test
when examining whether conduct constitutes excusable neglect
under Rule 4(a)(5). See Pincay v. Andrews, 389 F.3d
853, 859 (9th Cir. 2004); see also Hoy v. Yamhill
Cty., 693 Fed. App'x 664, 665 (9th Cir. 2017). The
specified factors are: “(1) the danger of prejudice to
the opposing party; (2) the length of the delay and its
potential impact on the proceedings; (3) the reason for the
delay; and (4) whether the movant acted in good faith.”
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
1261 (9th Cir. 2010). The factors must be construed
elastically and against “erecting a rigid barrier
against late filings attributable in any degree to the
movant's negligence.” Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392
& 395 n.14 (1993).
to the first factor, Lockheed argues permitting Plaintiff to
file an untimely notice of appeal will increase its attorneys
fees. Lockheed states that because briefing on the appeal
from the judgment will largely be completed before a decision
on this motion, the two appeals cannot be briefed together. A
late appeal from the post-judgment order will therefore
require an entirely new set of briefing and additional fees
that could have been avoided had Plaintiff filed a timely
notice of appeal. In addition, Lockheed claims a late appeal
will allow Plaintiff to expand the appellate record with
evidence he failed to produce at summary judgment.
the court understands Lockheed's position, it nonetheless
finds this statement of prejudice does not weigh against
granting relief to Plaintiff. Lockheed would necessarily
incur some increase in attorneys fees even if the appeals
were briefed together, lessening the amount of fees directly
attributable to a second, separate round of briefing. And the
additions to the record are not prejudicial. Lockheed
successfully argued before this court the reasons it believes
the evidence is improper and insignificant. It can do so
again before the Ninth Circuit.
to the second factor, Plaintiff argues the impact of any
delay to the proceedings is minimal. The court agrees. As of
now, there are no further matters requiring district court
attention. The case is pending before the Ninth Circuit,
which can still consider both appeals together even if they
are briefed separately. Because there is no identifiable
delay, this factor favors granting relief to Plaintiff.
the third factor, the court is mindful that excusable neglect
can encompass “inadvertence, mistake, or carelessness,
as well as by intervening circumstances beyond the
party's control.” Id. at
As recited above, Plaintiff's counsel was away from the
office handling another case in late January, and then became
seriously ill shortly after returning. The illness left
counsel unable to completely handle all of his legal matters,
including the filing of a timely notice of appeal.
rightfully points out the aspects of this account which raise
questions about whether it should be considered excusable. It
identifies at least two other attorneys who have worked with
Plaintiffs counsel on this case, either of which could have
filed a notice of appeal. Lockheed also notes that Plaintiffs
counsel admits to not discovering expirations of appeal
deadline until nearly a month later. This fact raises a
question about the diligence of Plaintiff s counsel and the
sincerity of his explanation. Indeed, if Plaintiff s counsel
- the only attorney with knowledge of the issue - did not
notice the deadline's expiration until a month later, it
is at least debatable whether counsel's absence and
subsequent illness actually prevented compliance with ...