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Ward v. American Multi-Cinema, Inc.

United States District Court, M.D. Louisiana

February 13, 2019

AARON WARD
v.
AMERICAN MULTI-CINEMA, INC.

          RULING AND ORDER

          JUDGE BRIA A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

         Before 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.

         I. BACKGROUND

         Plaintiffs 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.

         The 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. (Doc. 33).

         Plaintiff 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.

         II. LEGAL STANDARD

         The 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. 4(a)(5)(A).

         III. DISCUSSION

         Plaintiff 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).[1]

         To 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).

         The 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.

         But the 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 http://www.lamd.uscaiirts.iiov/caHe-info-cm-ecf-caije-info. Counsel even "acknowledge[d] it is [his] responsibility to understand how to electronically file via the CM/ECF system." [2] Id.

         Had 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.[3] 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, ยง (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 ...


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