United States District Court, M.D. Louisiana
RULING AND ORDER
BRIA A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT
the Court is Plaintiff Aaron Ward's Motion for
Leave to File Notice of Appeal (Doc. 33) from this
Court's judgment dismissing his premises-liability
claims. For the reasons that follow, the Motion (Doc.
33) is DENIED.
motion presents the question whether counsel's misuse of
the CM/ECF system qualifies as "excusable neglect"
justifying an extension of time to file a notice of appeal
under Federal Rule of Appellate Procedure 4(a)(5)(A). The
Court holds that it does not.
Court entered judgment against Plaintiff on July 24, 2018.
(Doc. 30). Plaintiffs notice of appeal was due 30 days later
on August 24, 2018. See FED. R. App. P. 4(a)(1)(A). Plaintiff
failed to timely file a notice of appeal; he instead moved
for leave to file an untimely notice of appeal on August 30,
2018, six days after the Rule 4(a)(1)(A) deadline expired.
faults the Court's CM/ECF system for his tardy filing.
(Doc. 33-1). He asserts that his counsel timely paid for his
notice of appeal and that the CM/ECF system failed to credit
the payment by placing the notice of appeal on the electronic
docket of this case. (Id.). Plaintiff attaches as an
exhibit to his motion a Pay.gov receipt showing a $505
payment made on August 9, 2018. (Doc. 33-3). Plaintiff does
not assert that he received a notice of electronic
filing issued by CM/ECF in connection with the payment. Nor
does Plaintiff acknowledge the possibility that his
counsel-rather than the Clerk of Court or the
CM/ECF system-erred when he tried to pay for and file the
notice of appeal.
Court may extend the time for filing a notice of appeal if
Plaintiff so moves within 30 days after the Rule 4(a)(1)(A)
period expires and Plaintiff shows "excusable
neglect" or "good cause." Fed. R. App. P.
moved to extend the time for filing his notice of appeal on
August 30, 2018, within 30 days after the Rule 4(a)(1)(A)
period expired. (Doc. 33). So he is entitled to an extension
if he can show "excusable neglect." See
Fed. R. App. P. 4(a)(5)(A).
decide if Plaintiff has shown "excusable neglect,"
the Court considers (1) the danger of prejudice to American
Multi-Cinema, (2) the length of the delay and its potential
impact on the case, (3) the reason for the delay, and (4)
whether Plaintiff acted in good faith. Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P'Ship, 507
U.S. 380, 395 (1993).
first, second, and fourth factors are neutral. Plaintiff
moved for leave to file a notice of appeal six days late, so
the length of delay and danger of prejudice are small. And no
one asserts that Plaintiff failed to act in good faith.
third factor-the reason for the delay-disfavors a finding of
excusable neglect. The reason for the delay is Plaintiffs
counsel's misuse of the Court's electronic filing
system-a system with which counsel certified he was familiar
when he registered for a CM/ECF username. See CM/ECF
Registration Form, available at
Counsel even "acknowledge[d] it is [his] responsibility
to understand how to electronically file via the CM/ECF
system."  Id.
counsel read the Middle District of Louisiana's
publicly-available tutorial on CM/ECF, he would have known
that paying for a notice of appeal is not the same
as filing one. That is because "[o]nce the
payment has been successfully completed, users will
automatically return to the filing process." Middle
District of Louisiana Administrative Procedures for Filing
Pleadings, § (I)(H)(3). Counsel evidently failed to
complete the "filing process" after submitting
payment because the electronic docket does not show a notice
of appeal filed on August ...