-
USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1589
WILLIAM GOCHIS, ET AL.,
Plaintiffs, Appellants,
v.
ALLSTATE INSURANCE CO., ET AL.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr, and Stahl,
Circuit Judges.
______________
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on February 10, 1994, is amended
as follows:
Page 3, footnote 3, revised as follows:
Fed. R. App. P. 3(c) states, inter alia, that the notice of
_____ ____
appeal "shall specify the party or parties taking the
_______
appeal." (emphasis supplied). We note that Fed. R. App. P.
3(c) has been amended effective December 1, 1993. However,
since neither party has raised the applicability of the
revised rule, we have not considered the amendment in this
appeal.
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1589
WILLIAM GOCHIS, ET AL.,
Plaintiffs, Appellants,
v.
ALLSTATE INSURANCE CO., ET AL.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr, and Stahl,
Circuit Judges.
______________
____________________
Nelson P. Lovins with whom Sarah Tucker and Lovins & Metcalf were
_________________ ____________ ________________
on brief for appellants.
James W. Nagle with whom Robert M. Hale, Thomas M. Hefferon, and
______________ _______________ __________________
Goodwin, Procter & Hoar were on brief for appellee.
_______________________
____________________
February 10, 1994
____________________
Per Curiam. Plaintiffs-appellants William Gochis,
Per Curiam
__________
et al., attempt to appeal the district court's grant of
summary judgment in favor of defendant Allstate Insurance Co.
Because plaintiffs' notice of appeal is ineffective, however,
we dismiss for lack of appellate jurisdiction.
I.
I.
__
Factual and Procedural Background
Factual and Procedural Background
_________________________________
A. The Dispute
A. The Dispute
_______________
This case involves a compensation dispute between
plaintiffs, seventy-nine former Massachusetts insurance sales
agents ("Agents"), and their employer, defendant Allstate
Insurance Company ("Allstate"). Agents worked for Allstate
pursuant to an Agent Compensation Agreement until Allstate,
discouraged by its inability to turn a profit under the
Massachusetts insurance regime, ceased doing business in
Massachusetts in 1989.
In September 1990, seventy-six1 of the plaintiffs
filed a suit against Allstate alleging, inter alia, breach of
_____ ____
the implied covenant of good faith and fair dealing.
Allstate moved for summary judgment on two occasions, and the
district court granted both motions.2
____________________
1. The remaining three plaintiffs were added with leave of
the court on November 25, 1991 and January 16, 1992.
2. Allstate's first motion for summary judgment, against
five of the Agents, was granted in segments by the district
court in oral rulings on June 9, 1992 and February 10, 1993,
and in a February 19, 1993, written decision. Allstate's
-2-
2
B. Jurisdictional Chaos
B. Jurisdictional Chaos
________________________
The appellate jurisdictional woes of the Agents
began when they subsequently filed a timely notice of appeal.
Instead of naming all seventy-nine Agents, the caption in the
notice of appeal merely listed the appellants as "William
Gochis, et. al." The appealing Agents were further
identified in the body of the notice as "all of the
plaintiffs in the above-entitled action."
Agents' counsel was notified by the Clerk's Office
that, under Fed. R. App. P. 3(c),3 the notice could be
deemed defective as to all plaintiffs other than Gochis. In
response to this notification, because the thirty-day period
for filing a notice of appeal under Fed. R. App. P. 4(a)(1)
had elapsed, Agents' counsel filed with the district court a
Fed. R. App. P. 4(a)(5)4 motion to extend the time for
____________________
second motion for summary judgment, against the other
seventy-four Agents, was granted by the district court in an
oral decision on April 8, 1993.
3. Fed. R. App. P. 3(c) states, inter alia, that the notice
_____ ____
of appeal "shall specify the party or parties taking the
_______
appeal." (emphasis supplied). We note that Fed. R. App. P.
3(c) has been amended effective December 1, 1993. However,
since neither party has raised the applicability of the
revised rule, we have not considered the amendment in this
appeal.
4. Fed. R. App. P. 4(a)(5) states in relevant part that:
The district court, upon a showing of
excusable neglect or good cause, may extend the
time for filing a notice of appeal upon motion
filed not later than 30 days after the expiration
of the time prescribed by this Rule 4(a). . . .
-3-
3
filing a new notice of appeal. By margin order, and over
Allstate's objection, the district court granted the
extension. A new notice of appeal naming all seventy-nine
Agents was then filed and docketed. Thereafter, Agents'
counsel voluntarily filed a motion to withdraw the first
notice of appeal. We granted this motion in June 1993.
II.
II.
___
Discussion
Discussion
__________
On appeal, Allstate claims that the district court
erred in granting Agents' motion to extend the time to file a
new notice of appeal.5 More specifically, Allstate contends
that the district court erred in determining that the Agents
adequately demonstrated excusable neglect as required under
Fed. R. App. P. 4(a)(5). Agents, in response, primarily
argue that the district court's grant of their motion was not
in error and, therefore, that this appeal should proceed as
____________________
[N]o such extension shall exceed 30 days past such
prescribed time or 10 days from the date of entry
of the order granting the motion, whichever occurs
later.
5. We note that Allstate incorrectly assumes that if we
reverse the district court's ruling, this appeal will be
dismissed as to seventy-eight of the Agents only, leaving
Gochis' appeal intact. However, because the second notice of
appeal was filed after the time prescribed by Rule 4(a)(1),
and because the first notice was voluntarily withdrawn, the
appeals of all seventy-nine Agents, including Gochis, depend
__ ___ ____________ ______
upon the viability of the second notice of appeal.
-4-
4
to all seventy-nine Agents. We think Allstate has the better
argument.6
A. Standard of Review
A. Standard of Review
______________________
Our review of a district court's interpretation of
______________
Fed. R. App. P. 4(a)(5) is plenary. Pontarelli v. Stone, 930
__________ _____
F.2d 104, 109 (1st Cir. 1991). Where the district court's
grant of plaintiff's motion to extend time for filing a new
notice of appeal is by margin order and, therefore, without
any interpretation of the rule, however, we will ordinarily
review its decision to grant a Fed. R. App. P. 4(a)(5) motion
for abuse of discretion. See generally id.; cf. Ramseur v.
___ _________ ___ ___ _______
Beyer, 921 F.2d 504, 506 n.2. (3d Cir. 1990).
_____
B. Excusable Neglect under Fed. R. App. P. 4(a)(5).
B. Excusable Neglect under Fed. R. App. P. 4(a)(5).
____________________________________________________
As noted above, under Fed. R. App. P. 4(a)(1),
notices of appeal in civil cases must be filed "30 days after
the date of entry of the judgment . . . appealed from." Fed.
R. App. P. 4(a)(5) provides a narrow exception whereby
delinquent parties may be granted up to an additional 30 days
by the district court. To avail oneself of the exception, in
____________________
6. Agents also contend that Allstate waived its challenge to
the district court's ruling by filing its objection 50 days
after the district court's order was issued, and, therefore,
20 days after the time prescribed by Rule 4(a)(1). Because
our jurisdiction depends upon the validity of the district
court's decision, however, we are not bound by this alleged
procedural default. Instead, as always, we have "an
obligation to inquire sua sponte into [our] subject matter
___ ______
jurisdiction, and to proceed no further if such jurisdiction
is wanting." See In re Recticel Foam Corp., 859 F.2d 1000,
___ __________________________
1002 (1st Cir. 1988).
-5-
5
circumstances where the need for the extension "results
entirely from neglect attributable to appellant, as
distinguished from forces beyond her control, appellant must
show excusable neglect." Pontarelli, 930 F.2d at 109. As we
__________
have often stated, in order to show excusable neglect,
appellant must demonstrate unique or extraordinary
circumstances. See, e.g., id. at 104; Rivera v. Puerto Rico
___ ____ ___ ______ ___________
Tel. Co., 921 F.2d 393, 396 (1st Cir. 1990). We find no such
________
circumstances here.
Agents, in their motion, explained to the district
court that their tardiness was caused by a misapprehension of
Fed. R. App. P. 3(c)'s specificity requirement. This
misapprehension, in turn, was given two explanations: (1)
the "names of the plaintiffs were omitted through
inadvertence of counsel"; and (2) counsel's failure to name
the defendants was the result of counsel's "plausible
misconstruction" of the requirements of Fed. R. App. P. 3(c).
Neither explanation is sufficient to meet the Fed. R. App. P.
4(a)(5) standard.
In Rivera, we explicitly held that counsel's
______
mistaken or inadvertent failure to name the appellants in a
notice of appeal "does not constitute excusable neglect for
purposes of Fed. R. App. P. 4(a)(5)" absent unusual or
extraordinary circumstances. Rivera, 921 F.2d at 396.
______
Agents argue that the "unusual or extraordinary
-6-
6
circumstances" in this case consist of their own "plausible
misconstruction" of the requirements of Fed. R. App. P. 3(c).
We disagree.
Although we do not completely discount the
possibility that a "plausible misconstruction" of Federal
Rules may, in some situations, meet the requirements of
excusable neglect under Fed. R. App. P. 4(a)(5), Agents'
counsel's "misconstruction" of the requirements of Fed. R.
App. P. 3(c) can hardly be considered "plausible." As noted
above, Fed. R. App. P. 3(c) requires that a notice of appeal
"specify" the "parties taking the appeal." In 1987, the
Supreme Court stated that "specify" means "name." Torres v.
______
Oakland Scavenger Co., 487 U.S. 312, 314 (1987)("The failure
______________________
to name a party in a notice of appeal is more than excusable
____
`informality'; it constitutes a failure of that party to
appeal.")(emphasis supplied). Moreover, we repeatedly have
held that we lack jurisdiction over unnamed appellants. See
___
Rivera, 921 F.2d at 395; Rosario-Torres v. Hernandez-Colon,
______ ______________ _______________
889 F.2d 314, 317 (1st Cir. 1989) (en banc); Marin-Piazza v.
____________
Aponte-Roque, 873 F.2d 432, 433 (1st Cir. 1989); Santos-
____________ _______
Martinez v. Soto-Santiago, 863 F.2d 174, 176 (1st Cir. 1988).
________ _____________
As Agents point out, we have, on one occasion,
approved a finding that counsel's failure to name each
appellant on the notice of appeal constituted excusable
neglect. In the case of In re San Juan Dupont Plaza Hotel
___________________________________
-7-
7
Fire Litig., 888 F.2d 940 (1st Cir. 1989), we upheld the
____________
district court's grant of a Fed. R. App. P. 4(a)(5) motion
where the initial notice of appeal simply stated that "all
plaintiffs, through the Plaintiffs' Steering Committee hearby
[sic] appeal." Id. at 941. We found the district court did
___
not abuse its discretion by granting the Plaintiffs' Steering
Committee, ("PSC"), a team of trial attorneys representing
over 2000 plaintiffs, a Fed. R. App. P. 4(a)(5) extension to
file a new notice of appeal where 1) there were an
extraordinary number of plaintiffs;7 2) the PSC in its
representative status "existed precisely to represent all the
active plaintiffs," id. at 942; and 3) the PSC had previously
___
filed similar appeals in the same litigation without adverse
consequences. Id. at 941-42. Clearly, as Agents' counsel
___
conceded at oral argument, no such circumstances are present
in the record before us.
Furthermore, Agents' reliance on Lorezen v.
_______
Employees Retirement Plan of Sperry and Hutchinson Co., 896
________________________________________________________
F.2d 228 (7th Cir. 1990), as supporting their "plausible
misconstruction" argument, is misplaced. In Lorezen,
_______
counsel's neglect was excused because, among other things,
his plausible interpretation of the rule at issue had not
been foreclosed by the circuit until the twenty-eighth day of
____________________
7. It took thirty-nine pages to list the appellants in the
new notice of appeal.
-8-
8
the thirty-day appeal period. Moreover, the court found that
counsel's interpretation of the rule had been induced, in
part, by a confusing motion submitted by opposing counsel.
Again, we have no such circumstances before us. Here,
counsel's "misinterpretation" of Fed. R. App. P. 3(c) was due
to nothing more than counsel's ignorance of the law,
something the Lorezen court viewed as inexcusable neglect
_______ ___________
under Fed. R. App. P. 4(a)(5). Id. at 232 (naming
___
"`plausible misconstructions, but not mere ignorance, of the
___ ___ ____ _________ __ ___
law or rules' as one of the types of excusable neglect" under
___ __ _____
Fed. R. App. P. 4(a)(5)) (quoting Redfield v. Continental
_______ ________ ___________
Casualty Corp., 818 F.2d 596, 602 (7th Cir. 1987)) (emphasis
______________
supplied).
In sum, because Agents have failed, as a matter of
law, to demonstrate any circumstance that the district court
could have found to be unique or extraordinary, we find that
the district court abused its discretion in extending Agents'
time to file a new notice of appeal. Accordingly, we reverse
the district court's order granting Agent's Fed. R. App. P.
4(a)(5) extension.
C. Failure to Perfect a Timely Appeal
C. Failure to Perfect a Timely Appeal
______________________________________
Given the invalidity of the district court's Fed.
R. App. P. 4(a)(5) extension, Agents' second notice of appeal
is not timely and, therefore, is ineffective to support this
appeal. See, e.g., United States v. Robinson, 361 U.S. 220,
___ ____ ______________ ________
-9-
9
229 (1960)(holding that the time limit to file a notice of
appeal is "mandatory and jurisdictional"). Agents' counsel
argues that despite the case law discussed supra, we still
_____
have the authority, under Fed. R. App. P. 2, to suspend the
filing requirements. We disagree. Fed. R. App. P. 2 states,
in relevant part, that "for . . . good cause shown, a court
of appeals may, except as otherwise provided in Rule 26(b),
______ __ _________ ________ __ ____ _____
suspend the requirements or provisions of any of these rules
in a particular case on application of a party or on its own
motion." (Emphasis supplied). Fed. R. App. P. 26(b), in
turn, expressly forbids a court from "enlarg[ing] the time
for filing an appeal." See also Torres, 487 U.S. at 317.
___ ____ ______
Accordingly, we have no jurisdiction to reach the merits of
this action and must necessarily dismiss.8 See id. at 317
___ ___
n.3 (holding that failure to comply with the technical
requirement of Fed. R. App. P. 3(c) erects a jurisdictional
hurdle which can never be "`harmless' or waived by the
court").
III.
III.
____
Conclusion
Conclusion
__________
Agents' failure to perfect an appeal within the
time prescribed by Fed. R. App. P. 4(a)(1) obligates this
____________________
8. This disposition, of course, makes unnecessary any
consideration of the merits of Agents' appeal. Nonetheless,
we note that even if we were to reach the merits, we would
affirm the district court's entry of summary judgment in
favor of Allstate.
-10-
10
court to dismiss their appeal for want of jurisdiction.
Accordingly, the grants of summary judgment below are final.
See Piazza v. Aponte Roque, 909 F.2d 35, 39 (1st Cir. 1990).
___ ______ ____________
Dismissed.
__________
-11-
11
Document Info
Docket Number： 93-1589
Filed Date： 3/1/1994
Precedential Status： Precedential
Modified Date： 9/21/2015