Ragguette v. Premier Wines & Spirits, 691 F.3d 315 (3d Cir. 2012). Federal Rule of Appellate Procedure 4(a)(5) allows an extension of time to file a notice of appeal upon a showing of “excusable neglect.” This decision by Judge Cowen finds that the Third Circuit Court of Appeals lacked jurisdiction over an appeal because the facts did not constitute “excusable neglect.”
The “excusable neglect” standard encompasses the danger of prejudice to the opposing party, 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. Here, as Judge Cowen recounted in detail, appellant’s counsel was not sufficiently diligent in implementing her intention to assign someone in her office to prepare appropriate papers, and she did not notice that no ECF notice reflecting the necessary filing had come across her desk (or, rather, her computer screen). In those circumstances, “the reason for the delay” outweighed all the other factors and dictated a finding of no excusable neglect.
This is a cautionary tale that any attorney who does appellate work should read. It is not enough to intend to file a notice of appeal. One must follow through diligently on that intent or risk being barred from appealing.