Glenford Ragguette v. Premier Wines & Spirits ( 2012 )


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  •                                    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _______________
    Nos. 11-2553 and 11-2669
    _______________
    GLENFORD RAGGUETTE,
    Appellant in No. 11-2553
    v.
    PREMIER WINES & SPIRITS,
    Appellant in No. 11-2669
    _______________
    On Appeal from the District Court
    of the Virgin Islands
    (D.C. Civil No. 2-06-cv-00173)
    District Judge: Hon. Timothy J. Savage
    _______________
    Argued May 9, 2012
    BEFORE: CHAGARES, JORDAN and
    COWEN, Circuit Judges
    (Filed: August 15, 2012)
    Lee J. Rohn, Esq.
    E. Geoffrey Wolfe, Esq. (Argued)
    Lee J. Rohn & Associates
    1101 King Street
    Christiansted, VI 00820
    Counsel for Appellant in No. 11-2553
    Anna H. Paiewonsky, Esq. (Argued)
    6501 Red Hook Plaza, Suite 201
    St. Thomas, VI 00802
    Counsel for Appellant in No. 11-2669
    _______________
    OPINION
    _______________
    COWEN, Circuit Judge.
    Plaintiff Glenford Ragguette appeals from the order of
    the District Court of the Virgin Islands granting the motion
    for summary judgment filed by Defendant Premier Wines and
    Spirits, Ltd. In turn, Premier appeals from the order of the
    District Court granting Ragguette‘s motion for an extension
    of time to file a notice of appeal under Federal Rule of
    Appellate Procedure 4(a)(5). We hold that the District Court
    abused its discretion by finding that Ragguette established
    ―excusable neglect‖ under this rule. We accordingly
    2
    determine that the motion for an extension of time to file a
    notice of appeal under Rule 4(a)(5) was improvidently
    granted. We will therefore dismiss Ragguette‘s appeal for
    lack of appellate jurisdiction.
    I.
    Ragguette alleged a number of employment
    discrimination and related claims against his former
    employer, Premier. Throughout this litigation, Ragguette has
    been represented by attorneys from a firm currently known as
    Lee J. Rohn & Associates—and primarily by Lee J. Rohn,
    Esquire, herself.
    In a January 5, 2010 order, the District Court granted
    Premier‘s summary judgment motion and entered judgment in
    favor of Premier and against Ragguette. The District Court
    provided its reasons for this determination in an
    accompanying memorandum opinion entered on the same
    day.
    Ragguette‘s counsel failed to file a notice of appeal
    within 30 days of the judgment or order pursuant to Federal
    Rule of Appellate Procedure 4(a)(1)(A). On January 13,
    2010, Premier filed a motion for attorneys‘ fees and costs
    under Federal Rule of Civil Procedure 68, specifically asking
    for the award to be directed (jointly and severally) against
    Ragguette and his counsel. Ragguette submitted an
    opposition to this fee motion on January 28, 2010. In a
    February 8, 2010 order, the District Court scheduled a fee
    hearing for February 23, 2010. But, on February 24, 2010,
    3
    the hearing was rescheduled for March 1, 2010. Following
    this hearing, Premier filed a contested motion to amend its fee
    motion, requesting, among other things, a fee award directed
    against Rohn in her individual capacity. The original motion
    and the motion to amend, however, were subsequently
    withdrawn by Premier.
    On March 5, 2010, Ragguette filed a motion for
    issuance of an order pursuant to Federal Rule of Civil
    Procedure 58(e), or, in the alternative, for an order granting
    an extension of time to file a notice of appeal pursuant to
    Federal Rule of Appellate Procedure 4(a)(5). With respect to
    the alternative form of relief, he argued, inter alia, that his
    attorney‘s failure to file a timely notice of appeal was caused
    by excusable neglect. In short:
    Because of trial preparation for several
    other cases, counsel failed to actually issue the
    computer task. Specifically, counsel annotated
    the order as to appeal issues and provided it to
    the secretary on the case. The procedure in the
    office is that a task should have been generated
    by counsel to file the notice of appeal at the
    same time. The secretary scanned the order
    with the annotation in to the system on January
    11, 2010 (Exhibit 1) but because there was no
    task did not prepare the appeal. Counsel was
    unaware that the notice of appeal had not been
    e-filed and did not discover the same until
    preparing for the hearing on the fee issue when
    she did not find a notice of appeal in the
    4
    computer file.
    In this case, the failure to file a timely
    notice of appeal was due to excusable neglect,
    so as to warrant the granting of the motion for
    extension of time. The objective record shows
    that lead counsel for Plaintiff ―annotated the
    Memorandum Opinion of the summary
    judgment ruling to be used to draft the notice of
    appeal to move to appeal on the grounds as
    noted in the annotated document, and on the
    ground of the rulings denying discovery. See
    screen shot showing date the annotated
    judgment was scanned as of January 11, 2010
    (Exhibit 1). Counsel had requested that the
    annotated motion be scanned into the appeals
    file. See, Exhibit 1, the annotations on the
    Memorandum. Counsel was in trial and in
    mediations and then off island as set forth
    herein.
    It has now come to counsel‘s attention
    that all that was done was that the annotated
    Memorandum Opinion was scanned. The fact
    that counsel was off-island, and the fact that in
    her absence, the notice would have been
    prepared and reviewed and filed by another
    staff attorney, Counsel reasonably thought that
    the task had been issued.
    (A343-A344 (error in original).) A so-called ―screen shot‖
    5
    (which listed a pdf file entitled ―Annotations-re-
    Memorandum-Opinion-and-Thoughts-for-Appeal-
    01/11/2010‖ and indicated that this document was last
    modified at 7:44 a.m. on January 11, 2010) was attached as
    Exhibit 1 to Ragguette‘s motion. (Dist. Ct. Dkt. Entry #137-
    1.)
    Premier filed its opposition to this motion on March
    16, 2010, and Ragguette submitted a reply on April 1, 2010.
    He also submitted an affirmation from Rohn herself as well as
    an annotated copy of the District Court‘s January 5, 2010
    memorandum opinion (attached as Exhibit A). Rohn
    provided the following explanation for why the notice of
    appeal had not been filed:
    2.     As represented in the Motion for
    Issuance of An Order pursuant Pursunat-to-
    FRCP 58(e)-or-in-the-Alternative-an-Order-
    Granting-an-Extention-of-Time-to-File-a-
    Notice-of-Appeal-03-05-2010 after annotating
    the court‘s ruling, I submitted to my legal
    assistant and new motions attorney the
    annotated ruling, with the intention that a notice
    of appeal should be filed on the grounds as
    annotated in the ruling. See, Exhibit A,
    Annotated Ruling.
    3.     I had a mental lapse and failed to realize
    I was working with my relatively new motion
    attorney and not my former associate and
    partner of over 11 years who would have
    6
    correctly interpreted my notes and
    automatically calendared and drafted a notice of
    appeal without the need of a specific task,
    instead of simply filing the annotated decision.
    I further intended to issue a task and reasonably
    thought I had done so. It appears I either didn‘t
    send the task or didn‘t complete the procedure
    as no task was generated by the computer.
    4.      That my intention was to appeal the
    ruling is manifest from the annotated decision.
    5.      Given the press of matters requiring my
    attention, matters that are objectively verifiable,
    it is understandable and reasonable under the
    circumstances that this oversight occurred.
    6.     I honestly believed that a notice of
    appeal was filed in accordance with my
    annotations on the decision.
    7.     I did not mention the intent to appeal
    during the hearing regarding the motion for fees
    because I wanted to verify my records as to
    what occurred.
    (A355-A356 (errors in original).) There were a number of
    handwritten comments and notations on the annotated
    memorandum opinion. Most significantly, the following
    comment was written at the top of the first page: ―*Scan in as
    ‗thoughts Re appeal‘.‖ (A357.)
    7
    The District Court denied Ragguette‘s motion on May
    14, 2010. Ragguette filed a notice of appeal on May 20, 2010
    (a notice of appeal was previously entered on the docket on
    May 17, 2010, but Ragguette was then directed to refile using
    the correct prompt). On April 19, 2011, we upheld the
    District Court‘s denial of his request for an order under
    Federal Rule of Civil Procedure 58(e) because Premier never
    filed the appropriate motion for fees and costs pursuant to
    Federal Rule of Civil Procedure 54(d)(2). However, we
    vacated the District Court‘s denial of his request for relief
    under Rule 4(a)(5) and remanded ―the case to the District
    Court to analyze whether the neglect at issue in this case was
    excusable under the Pioneer standard.‖ Ragguette v. Premier
    Wines & Spirits, Ltd., 424 F. App‘x 155, 157 (3d Cir. 2011)
    (footnote omitted). We explained that the Supreme Court‘s
    ruling in Pioneer Investment Services Co. v. Brunswick
    Associates Limited Partnership, 
    507 U.S. 380
    (1993),
    established an equitable approach to the ―excusable neglect‖
    determination. While a court must still take into account all
    of the relevant circumstances, ―Pioneer provides four factors
    to consider when making this equitable determination: (1) the
    danger of prejudice to the non-movant; (2) the length of the
    delay and the impact on judicial proceedings; (3) the reason
    for the delay, including whether it was within the reasonable
    control of the movant; and (4) whether the movant acted in
    good faith.‖ Ragguette, 424 F. App‘x at 156-57 (citing
    
    Pioneer, 507 U.S. at 395
    ). We concluded that the District
    Court abused its discretion by disposing of the Rule 4(a)(5)
    motion ―‗without an opinion, without a reason, and more
    importantly, without reference to the Pioneer four-factor
    8
    balancing standard.‘‖ 
    Id. at 157 (quoting
    In re Diet Drugs
    Prods. Liab. Litig., 
    401 F.3d 143
    , 154 (3d Cir. 2005))).
    On May 16, 2011, Premier filed its supplemental
    opposition to the Rule 4(a)(5) motion. Among other things,
    Premier referred to Ragguette‘s testimony at a recusal hearing
    held before the District Court on January 26, 2011. It also
    submitted a letter to Ragguette from a legal assistant at the
    Rohn law firm named Enith Abraham, which was dated
    January 14, 2000 and stated that the enclosed documents were
    being returned to him for his records. Most significantly,
    Premier attached as an exhibit a series of e-mails exchanged
    by Rohn and Glenda Cameron, Esquire (who was then
    working with the firm on a contract basis), which had been
    produced in connection with an unsuccessful recusal motion
    previously filed by Ragguette and other Rohn clients.
    Rohn began the rather lengthy e-mail chain at 2:03
    p.m. on March 1, 2010:
    it appears that the order on summary judgment
    came in on January 5, 2010. although I did an
    annotation of the order and instructed taht it be
    placed in the appeal file after the finling of the
    notice of appeal, the appeal was not filed. i
    only learned about it to day when prepping for
    argument on the issue of whether defendant can
    be awarded fees and costs. that hearing was
    today. the motion had originally been brought
    under rule 68 re offer of judgment. but at
    argument today the defendant stated it wanted
    9
    to add an argument under title vii that the
    complaint was frivolous and as such defendant
    should be awarded fees. the judge then invited
    her to also make an argument that the fees
    should be against counsel and not plaintiff. we
    argued the motion woould not be timely and
    opposed. court granted her a week to amend
    her motion to add issues re why case was
    frivolous etc and why fees should be awarded
    under title vii. can I use that pending motion to
    file the appeal of hte underlying order for sj to
    wait and file appeal until that motion is ruled
    on? if not is there someway I can file the
    appeal out of time.
    (A406 (errors in original).) The two attorneys then
    exchanged e-mails addressing, among other things, the
    different options that could be available to pursue an appeal,
    when any motion for relief should be filed and what should be
    included, legal research, and the drafting of the motion itself.
    Asked by Cameron to provide ―facts showing ‗good cause‘
    for the failure to file the notice of appeal,‖ Rohn explained
    that:
    I annotated the sj ruling and stated move to
    appeal along with rulings denying discovery.
    Please scan in appeal file. Instead all that was
    done was it was scanned into appeal file. I got a
    task response done. I thought it meant both. It
    only meant scanned. Normally under old rules I
    would know if notice done because it would
    10
    have been signed and physically filed. With
    new if I am not there it just gets e filed so I have
    no way of on hand monitoring. I did not realize
    not filed til prepared for argument on atty fees
    motion
    (A396 (errors in original).)
    On May 20, 2011, the District Court conducted a
    hearing on the Rule 4(a)(5) motion. Ragguette was not
    present, but Rohn provided a detailed (if unsworn) account of
    what had happened.
    Rohn told the District Court that her firm used a
    system of ―computer tasks‖ and ―paper tasks‖ for making and
    monitoring assignments. The Outlook computer program‘s
    task system apparently allows Rohn to assign a particular task
    to a specific subordinate together with a deadline for
    performing the task itself. If the subordinate does not
    complete the task within the time limit, ―that task comes back
    to you in red saying, this task has not been done.‖ (A451.)
    On the other hand, there is also ―the physical paper, and the
    conversation.‖ (Id.) Rohn claimed that, although she
    believed that she had successfully generated both a computer
    task as well as a paper task, she actually only ever created a
    paper task.
    Rohn further explained that the new attorney or
    appellate motions clerk assigned this task ultimately worked
    for the firm for less than a year (and, at the time at issue here,
    had not been with the firm for a very long time). Rohn
    11
    confirmed that ―I don‘t get any ECF1 files at all, because I
    don‘t monitor those deadlines,‖ and that, instead, ―all the ECF
    filings in my office, even [those] directed to me internally
    through technology, go to the attorney who is actually in
    charge of monitoring those [cases].‖ (A440 (footnote
    added).) Although a self-confessed ―control freak‖ who likes
    to review every document with her signature (A444), it is still
    possible that she would not review a particular motion, even
    though it has her ―computer signature on it,‖ if she was
    unavailable at the time that the document had to be filed
    (A441). She denied taking the position that she missed the
    deadline in this case simply because there ―was just too much
    going on.‖ (A444.) In contrast, she purportedly missed this
    deadline because she believed the notice of appeal had been
    filed given the fact that she ―instructed that it be filed‖ and
    ―gave the document to the motions clerk to assign it and to do
    the notice of appeal,‖ which would then have gone out (after
    being reviewed by at least one attorney at her firm) as a non-
    substantive but time-sensitive filing. (A444-A445.) In other
    words, Rohn‘s various activities at the time that the notice of
    appeal should have been filed established ―why the appeal,
    the notice of appeal to be signed would not have necessarily
    come to me‖ and why she ―wouldn‘t have notice that
    someone else didn‘t sign the notice of appeal.‖ (A445-A446.)
    Rohn further indicated that, after the entry of the summary
    judgment order, she consulted with her client about filing an
    1
    The Case Management / Electronic Case Filing
    (CM/ECF) system is a computer case management system
    that allows courts to maintain electronic case files and
    attorneys to file (and serve) documents through the Internet.
    12
    appeal and that he was in agreement with this course of
    action. She also claimed that it was not her experience that
    the Third Circuit sends out scheduling orders within 7 to 10
    days of the filing of a notice of appeal. According to Rohn,
    this Court instead sends out a mediation order around 30 days
    after the notice of appeal‘s filing, and a transcript purchase
    order or anything else would have gone to Rohn‘s associate—
    not Rohn. In any case, she purportedly would have
    discovered the oversight when the appellate briefing
    schedules were not issued 45 or 60 days after the notice of
    appeal was supposed to be filed.
    In the end, Rohn accepted ―responsibility that while I
    believed that I had followed my regular procedure of the
    office, which is a computer tasking system to follow
    deadlines, it appears that I inadvertently did not do so.‖
    (A451.) She defended her firm‘s ―very involved expensive
    computer system to track documents,‖ and claimed that this
    case involved nothing more than unfortunate ―human error,‖
    which is the kind of mistake that everybody makes. (A452.)
    On June 7, 2011, the District Court granted
    Ragguette‘s motion for an extension of time to file a notice of
    appeal under Rule 4(a)(5). Applying the Pioneer factors, the
    District Court focused on the circumstances as they existed on
    the day the motion was actually filed. It did so because any
    subsequent delay cannot be attributed to Ragguette and
    instead resulted from the judicial proceedings. ―Ragguette
    offers his attorney‘s mistake in following-up instructions to
    her staff to file a notice of appeal as the excuse for missing
    the filing deadline.‖ Ragguette v. Premier Wines & Spirits,
    13
    Ltd., Civil Action No. 2006-0173, 
    2011 WL 2359920
    , at *1
    (D.V.I. June 7, 2011). According to the District Court,
    Ragguette had failed to articulate any specific reason for not
    filing a timely notice of appeal in his original motion and had
    instead merely cited to his attorney‘s busy schedule. At the
    hearing, his attorney ―represented that she had made a
    mistake when she failed to complete an additional step in the
    computer process in her office,‖ which meant that ―her staff
    never received the instructions to perfect an appeal.‖ 
    Id. In turn, this
    attorney provided support for her representation
    ―with a screen shot of the computer message.‖ 
    Id. The District Court
    also acknowledged that the ―timing of the Rule
    4 motion is consistent with the defendant‘s suspicion [that
    Ragguette never intended to take an appeal and that his
    attorney decided to file one in retaliation for Premier‘s fee
    proceeding],‖ but it then added that there was no evidence to
    confirm this suspicion. 
    Id. Therefore, the District
    Court
    found that the failure to file the notice of appeal was caused
    by attorney ―inadvertence.‖ 
    Id. It then stated
    that:
    The delay, measured at the time Ragguette
    filed his motion, was twenty-nine days, but
    within the time for filing the Rule 4 motion.
    His attorney stated that only when she was
    preparing for the hearing on the motion for
    attorney‘s fees did she realize that the appeal
    had not been taken. She then sought advice on
    how to remediate her failure. There is no
    indication that she purposefully waited until the
    penultimate day to file the motion. Under the
    circumstances, the delay was not inordinate.
    14
    Nor was it in bad faith. The defendant argues
    that it will be prejudiced by the passage of time
    because witnesses have become unavailable and
    memories are fading. It also complains about
    the significant costs it has expended since the
    entry of judgment in its favor and will incur in
    the future. The first concern regarding the
    witnesses is not compelling. Ragguette seeks
    leave to appeal. No witnesses are necessary on
    appeal. The record is closed. In the event
    Ragguette‘s appeal is denied, there will be no
    need for witnesses. On the other hand, if he
    prevails, witnesses will be necessary at a trial.
    The defendant would face either situation had
    Ragguette filed a timely appeal. Nor is there
    evidence that defendant has incurred any
    significant costs since the entry of judgment, or
    that it will incur significant future costs
    connected to this motion. Again, at this point,
    any delay beyond the twenty-nine days was not
    Ragguette‘s fault. Moreover, there is no
    demonstration of actual harm to the defendant
    as a result of the late filing.
    
    Id. at *1. Pursuant
    to the District Court‘s order granting his Rule
    4(a)(5) motion, Ragguette filed, on June 8, 2011, a notice of
    appeal with respect to the order granting summary judgment.
    Premier likewise appealed from the District Court‘s Rule
    4(a)(5) order itself, which this Court has treated as a cross-
    15
    appeal.
    II.
    The District Court had jurisdiction over this
    employment case pursuant to 28 U.S.C. §§ 1331 and 1367.
    As we explain in more detail in Section III, infra, we must
    dismiss Ragguette‘s appeal because of the absence of
    appellate jurisdiction.
    It is uncontested that this Court generally reviews a
    district court‘s decision whether or not to grant an extension
    of time to file a notice of appeal for an abuse of discretion.
    See, e.g., In re Diet Drugs Prods. Liab. Litig., 
    401 F.3d 143
    ,
    153 (3d Cir. 2005). The district court abuses its discretion if
    its decision rests upon a clearly erroneous finding of fact, an
    errant conclusion of law, or the improper application of law to
    fact. See, e.g., In re Cendant Corp. Prides Litig., 
    233 F.3d 188
    , 192 (3d Cir. 2000). ―An abuse of discretion may also
    occur when ‗no reasonable person would adopt the district
    court‘s view.‘‖ 
    Id. (quoting Oddi v.
    Ford Motor Co., 
    234 F.3d 136
    , 146 (3d Cir. 2000)). ―Finally, ‗we will not interfere
    with the [D]istrict [C]ourt‘s exercise of discretion ―unless
    there is a definite and firm conviction that the court . . .
    committed a clear error of judgment in the conclusion it
    reached upon a weighing of the relevant factors.‖‘‖ 
    Id. (quoting same). III.
          28 U.S.C. § 2107(a) states that: ―Except as otherwise
    provided in this section, no appeal shall bring any judgment,
    16
    order or decree in an action, suit or proceeding of a civil
    nature before a court of appeals for review unless notice of
    appeal is filed, within thirty days after the entry of such
    judgment, order or decree.‖ Pursuant to this statutory
    provision, Federal Rule of Appellate Procedure 4(a)(1)(A)
    provides that, ―[i]n a civil case, except as provided in Rules
    4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by
    Rule 3 must be filed with the district clerk within 30 days
    after entry of the judgment or order appealed from.‖ The
    Supreme Court has determined that ―the timely filing of a
    notice of appeal in a civil case is a jurisdictional
    requirement.‖ Bowles v. Russell, 
    551 U.S. 205
    , 214 (2007).
    Ragguette was required to file a notice of appeal
    within the applicable 30-day time period following the
    January 5, 2010 entry of the order granting Premier‘s motion
    for summary judgment. In other words, he had to file his
    notice of appeal on or before February 4, 2010. He clearly
    failed to do so.
    However, the district courts do ―have limited authority
    to grant an extension of the 30-day time period.‖ 
    Id. at 208. 28
    U.S.C. § 2107(c) provides that ―[t]he district court may,
    upon motion filed not later than 30 days after the expiration
    of the time otherwise set for bringing appeal, extend the time
    for appeal upon a showing of excusable neglect or good
    cause.‖ Federal Rule of Appellate Procedure 4(a)(5)
    authorizes a party to file such a ―Motion for Extension of
    Time.‖ This rule currently provides that:
    (A) The district court may extend the time to
    file a notice of appeal if:
    17
    (i) a party so moves no later than 30
    days after the time prescribed by this
    Rule 4(a) expires; and
    (ii) 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.
    (B) A motion filed before the expiration of the
    time prescribed in Rule 4(a)(1) or (3) may be ex
    parte unless the court requires otherwise. If the
    motion is filed after the expiration of the
    prescribed time, notice must be given to the
    other parties in accordance with local rules.
    (C) No extension under this Rule 4(a)(5) may
    exceed 30 days after the prescribed time or 14
    days after the date when the order granting the
    motion is entered, whichever is later.
    Ragguette filed his motion on Friday, March 5, 2010, which
    was 59 days after the entry of the order. Because the 60th
    day was a Saturday, he actually had until the next business
    day, Monday, March 8, 2010, to file his Rule 4(a)(5) motion.
    See, e.g., Fed. R. App. P. 26(a)(1)(C). In any case, Ragguette
    thereby ―filed a timely motion for an order granting an
    extension of time to file a notice of appeal under Fed. R. App.
    P. 4(a)(5).‖ Ragguette, 424 F. App‘x at 155 (footnote
    18
    omitted). Because this motion was filed in a timely fashion
    (and the ―good cause‖ component of the rule is not at issue
    here),2 the basic question now before us is whether or not the
    2
    The good cause standard ―applies in situations in
    which there is no fault – excusable or otherwise.‖ Fed. R.
    App. 4 (Advisory Committee‘s Notes on 2002 Amendments).
    Courts, including our own, historically held that the ―good
    cause‖ language in Rule 4(a)(5) was inapplicable if the
    request for the extension was made after the period for filing
    a timely notice of appeal expired. See, e.g., Consol.
    Freightways Corp. of Del. v. Larson, 
    827 F.2d 916
    , 918 n.3
    (3d Cir. 1987) (explaining that ―good cause‖ is basis for
    extending time to file appeal ―only if the request is made
    within the original 30 day period for taking the appeal‖ and
    that ―[a]ny request for extension filed after the original period
    has run is governed by the excusable neglect standard‖
    (citations omitted)); Fed. R. App. P. 4 (Advisory Committee‘s
    Notes on 2002 Amendments) (describing ―misunderstanding‖
    whereby ―most of the courts of appeals have held that the
    good cause standard applies only to motions brought prior to
    the expiration of the original deadline‖). The rule was
    amended in 2002 to make clear that any that any such
    interpretation is mistaken and that ―good cause‖ and
    ―excusable neglect‖ are separate bases upon which a Rule
    4(a)(5) extension can be granted regardless of when the
    requesting motion is made. See Fed. R. App. P. 4 (Advisory
    Committee‘s Notes on 2002 Amendments) (―[A] motion for
    an extension filed during the 30 days following the expiration
    of the original deadline may be granted if the movant shows
    either excusable neglect or good cause.‖).
    19
    District Court abused its discretion by finding that Ragguette
    (and Rohn) established ―excusable neglect‖ under Rule
    4(a)(5). We must answer this question in the affirmative.
    In our previous ruling in this case, we turned to the
    factors identified by the Supreme Court in Pioneer Investment
    Services Co. v. Brunswick Associates Limited Partnership,
    
    507 U.S. 380
    (1993). The Court considered the meaning of
    the term ―excusable neglect‖ in the specific context of a
    bankruptcy rule permitting a late filing of a proof of claim by
    a creditor if the failure to comply with the deadline (or ―bar
    date‖) was the result of excusable neglect. 
    Id. at 382-83. Most
    significantly, it emphasized that the whole notion of
    excusable neglect implicates an equitable inquiry and thereby
    went on to provide a number of factors to be taken into
    account in this analysis:
    This leaves, of course, the Rule‘s
    requirement that the party‘s neglect of the bar
    date be ―excusable.‖ It is this requirement that
    we believe will deter creditors or other parties
    from freely ignoring court-ordered deadlines in
    the hopes of winning a permissive reprieve
    under Rule 9006(b)(1). With regard to
    determining whether a party‘s neglect of a
    deadline is excusable, we are in substantial
    agreement with the factors identified by the
    Court of Appeals. Because Congress has
    provided no other guideposts for determining
    what sorts of neglect will be considered
    ―excusable,‖ we conclude that the determination
    20
    is at bottom an equitable one, taking account of
    all relevant circumstances surrounding the
    party‘s omission. These include, as the Court
    of Appeals found, the danger of prejudice to the
    debtor, 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.
    
    Id. at 395 (footnotes
    omitted) (citations omitted). ―Although
    inadvertence, ignorance of the rules, or mistakes construing
    the rules do not usually constitute ‗excusable‘ neglect, it is
    clear that ‗excusable neglect‘ under [Federal Rule of Civil
    Procedure] 6(b) [allowing district courts to enlarge the period
    of time] is a somewhat ‗elastic concept,‘ and is not limited
    strictly to omissions caused by circumstances beyond the
    control of the movant.‖ 
    Id. at 392 (footnotes
    omitted). On
    the other hand, the neglect of both the party as well as the
    party‘s own attorney must be taken into account, and the
    Pioneer Court accordingly rejected the circuit court‘s
    suggestion that it would be improper to penalize a party for
    the omissions of counsel. 
    Id. at 396-97. The
    Supreme Court noted that the debtor did not
    challenge the bankruptcy court‘s findings concerning the
    creditors‘ good faith and the absence of any danger of
    prejudice to the debtor or of disruption to efficient judicial
    administration. 
    Id. at 397-98. It
    further indicated that it was
    not inclined to unsettle factual findings entered by a
    bankruptcy court and upheld by both the district and circuit
    21
    courts on appeal. 
    Id. In fact, the
    bankruptcy court observed
    that the debtor‘s reorganization plan had taken into account
    the late claims. 
    Id. In the absence
    of any evidence of
    prejudice, disruption, or bad faith, ―the unusual form of notice
    [of the bar date] employed in this case requires a finding that
    the neglect of respondents‘ counsel was, under all the
    circumstances, ‗excusable.‘‖ 
    Id. at 398-99. The
    Pioneer
    Court also noted that counsel was still ―remiss in failing to
    apprehend the notice,‖ and it accorded ―little weight to the
    fact that counsel was experiencing upheaval in his law
    practice at the time of the bar date‖ in assessing his
    ―culpability.‖ 
    Id. at 398. We
    have applied Pioneer‘s equitable approach in a
    variety of circumstances, including proceedings under Rule
    4(a)(5). See, e.g., In re Diet Drugs Prods. Liab. Litig., 
    401 F.3d 143
    , 153-54 (3d Cir. 2005). However, even prior to the
    Supreme Court‘s opinion, we addressed at some length the
    ―excusable neglect‖ concept in the specific context of a
    motion for an extension of time to file a notice of appeal
    pursuant to Rule 4(a)(5).
    In Consolidated Freightways Corp. of Del. v. Larson,
    
    827 F.2d 916
    (1987), the Pennsylvania Attorney General‘s
    Office prepared a notice of appeal in a Middle District of
    Pennsylvania case on December 18, 1986, one day before the
    30-day limit for filing a notice of appeal expired. 
    Id. at 917. However,
    the notice of appeal incorrectly identified the
    district as the Eastern District of Pennsylvania. 
    Id. Instead of being
    hand delivered to the Middle District Clerk‘s Office in
    Harrisburg (which was actually adjacent to the Attorney
    22
    General‘s Office), it was mailed to the Eastern District
    Clerk‘s Office (which received the document on December
    22, 1986 and then forwarded it to the Middle District, where
    it arrived on December 24, 1986). 
    Id. When notified by
    the
    Third Circuit Clerk‘s Office of a possible procedural defect,
    counsel immediately applied for a 5-day extension of time.
    
    Id. at 917-18. The
    district court denied this motion, but we
    concluded that ―the district court erred as a matter of law in
    its rigid application of 4(a)(5).‖ 
    Id. at 918. Rejecting
    the district court‘s attempt to establish a per
    se standard, we emphasized that the rule ―requires a case-by-
    case analysis‖ as well as specific findings by the district court
    regarding ―the reasons underlying counsel‘s inadvertence.‖
    
    Id. at 919. Noting
    the existence of ―a qualitative distinction
    between inadvertence which occurs despite counsel‘s
    affirmative efforts to comply and inadvertence which results
    from counsel‘s lack of diligence,‖ we went on to provide a
    non-exclusive list of factors to guide the district court‘s
    exercise of discretion:
    Although every case must be examined
    on an ad hoc basis and it is impossible to
    compose an exhaustive list of factors relevant to
    a determination of whether excusable neglect
    has occurred, a thoughtful analysis of this issue
    in a particular context will, at a minimum,
    require a weighing and balancing of the
    following factors: (1) whether the inadvertence
    reflects professional incompetence such as
    ignorance of the rules of procedure, Campbell
    23
    v. Bowlin, 
    724 F.2d 484
    (5th Cir. 1984) (failure
    to read rules of procedure not excusable); (2)
    whether the asserted inadvertence reflects an
    easily manufactured excuse incapable of
    verification by the court, Airline Pilots v.
    Executive Airlines, Inc., 
    569 F.2d 1174
    (1st Cir.
    1978) (mistake in diarying counsel‘s calendar
    not excusable); (3) whether the tardiness results
    from counsel‘s failure to provide for a readily
    foreseeable consequence, United States v.
    Commonwealth of Virginia, 
    508 F. Supp. 187
           (E.D. Va. 1981) (failure to arrange coverage
    during attorney‘s vacation which encompassed
    end of appeal period not excusable); (4)
    whether the inadvertence reflects a complete
    lack of diligence, Reinsurance Co. of America,
    Inc. v. Administratia, 
    808 F.2d 1249
    (7th Cir.
    1987); or (5) whether the court is satisfied that
    the inadvertence resulted despite counsel‘s
    substantial good faith efforts toward
    compliance.
    
    Id. at 919. We
    then determined, inter alia, that: (1) the attorney‘s
    mistake was not the result of professional incompetence; (2)
    he was not attempting to create some sort of facile excuse to
    extend the time to appeal and, on the contrary, gained nothing
    from his error; (3) this type of human error, though avoidable,
    was not readily foreseeable; and (4) the attorney otherwise
    acted with due (if not perfect) diligence and in good faith in
    24
    attempting to comply with Rule 4(a)(5) (including, among
    other things, drafting the notice of appeal within the 30-day
    limit, serving the notice of appeal on opposing counsel in a
    timely fashion, and then expeditiously filing a motion for an
    extension of time). 
    Id. at 919-20. ―This
    court interprets Rule
    4(a)(5) to require a finding of excusable neglect in those
    instances where the court, after weighing the relevant
    considerations is satisfied that counsel has exhibited
    substantial diligence, professional competence and has acted
    in good faith to conform his or her conduct in accordance
    with the rule, but as a result of some minor neglect,
    compliance was not achieved.‖ 
    Id. at 920. While
    emphasizing that the mistake there could have been detected
    by careful proofreading, we believed that even the most
    diligent attorneys are subject to these kinds of common
    human errors and, in particular, do not need to be reminded to
    address their mail accurately or to caption their cases
    properly. 
    Id. Even though the
    district court‘s approach might
    have effectively deterred incompetence or callous disregard
    for the rules in some circumstances, it would serve ―little
    deterrent purpose‖ in the context of human errors that are
    ―not readily capable of regulatory control.‖ 
    Id. We further noted
    that, ―[w]here as here the delay was minimal, and
    where the court has determined that the delay was not the
    result of any bad faith but rather occurred despite counsel‘s
    substantially diligent efforts at compliance, the judicial
    interest in deciding cases on the merits outweighs the interests
    in finality.‖ 
    Id. However, we also
    acknowledged that our
    opinion ―does not require the absolution of any and all
    clerical errors committed by counsel as excusable neglect,‖
    and we were confident that ―[t]he threshold requirement of
    25
    establishing substantial good faith efforts to comply readily
    eliminates the most common errors from the excusable
    neglect analysis.‖ 
    Id. at 921. Declining
    to hold that the
    failure to proofread a caption must be deemed to be
    inexcusable in each and every case, we held that such a
    failure was excusable given the factual context presented. 
    Id. We agree with
    Premier that the factors identified in
    Consolidated should still be considered in applying the
    overall approach subsequently set forth by the Supreme Court
    in Pioneer. In fact, we actually cited our Consolidated
    opinion with approval in our prior ruling in this case vacating
    the District Court‘s order and remanding for further
    proceedings. See Ragguette, 424 F. App‘x at 156.
    Furthermore, our reasoning in Consolidated essentially
    anticipated the approach taken by the Supreme Court itself,
    and we note that the Pioneer Court even acknowledged our
    Consolidated opinion as an example of a circuit court
    adopting ―a more flexible approach,‖ 
    Pioneer, 507 U.S. at 387
    n.3. It therefore is not surprising that we have continued to
    cite to—and quote with approval from—Consolidated as well
    as our subsequent decision in Dominic v. Hess Oil V.I. Corp.,
    
    841 F.2d 513
    , 517 (3d Cir. 1988) (turning, in service of
    process context, to five express factors identified in
    Consolidated as well as sixth factor for ―whether the
    enlargement of time will prejudice the opposing party‖). For
    instance, we indicated that ―[t]hese six factors, announced in
    Dominic before Pioneer was decided, present a more specific
    application of the general considerations later announced by
    the Supreme Court in Pioneer.‖ In re Orthopedic Bone Screw
    Prods. Liab. Litig., 
    246 F.3d 315
    , 323 (3d Cir. 2001). In
    26
    other words, ―the Dominic factors that were not restated in
    Pioneer were instead subsumed in the more general
    consideration of ‗reason for the delay.‘‖ 
    Id. (quoting In re
    Cendant Corp. Prides Litig., 
    233 F.3d 188
    , 196 n.8 (3d Cir.
    2000)); see also, e.g., 
    Cendant, 233 F.3d at 197
    n.8
    (―Additionally, the District Court mentioned the three factors
    we identified in a case predating Pioneer, Dominic v. Hess
    Oil 
    V.I., 841 F.2d at 517
    (inadvertence reflecting professional
    incompetence, excuse incapable of verification, complete lack
    of diligence), though these are arguably integrated within the
    fourth Pioneer factor, ‗reason for the delay.‘‖).
    Ragguette, however, contends that, because Premier
    had argued in the prior appeal in this case that the evidence
    was legally insufficient to show excusable neglect, this Court
    necessarily determined in its prior ruling that this evidence
    was sufficient for the District Court to rule in his favor.
    Simply put, Ragguette is reading too much into our prior
    ruling. We merely vacated the District Court‘s denial and
    remanded for further proceedings because ―the District Court
    disposed of Ragguette‘s motion ‗without an opinion, without
    a reason, and more importantly, without reference to the
    Pioneer four-factor balancing standard.‖ Ragguette, 424 F.
    App‘x at 157 (quoting Diet 
    Drugs, 401 F.3d at 154
    ). It is
    now our task to ascertain whether the District Court
    appropriately exercised its discretion by finding that ―the
    27
    neglect at issue in this case was excusable under the Pioneer
    standard.‖3 
    Id. (footnote omitted). 3
             We further note that Premier argues at some length
    that neither Rohn nor her client ever really intended to pursue
    an appeal, at least before the 30-day period to file a notice of
    appeal had already expired. In fact, it vigorously attacks
    Rohn‘s own motivations, suggesting, for instance, that
    ―counsel for Ragguette appeared more concerned with
    avoiding fees and costs being assessed against her.‖
    (Premier‘s Brief at 26.) Based, among other things, on the
    screen shot, the annotated memorandum opinion, and the
    subsequent e-mail exchange between Rohn and Cameron, it
    appears that a prior intention to pursue an appeal did exist in
    this case. We recognize that that ―the timing of the Rule 4
    motion is consistent with the defendant‘s suspicion.‖
    Ragguette, 
    2011 WL 2359920
    , at *1. Likewise, Rohn‘s
    return of documents to Ragguette is suspicious given that
    such documents would be useful for the appeal that she
    professed she intended to file. Nevertheless, we believe that
    the District Court did not abuse its discretion by finding that
    there was ―no evidence to confirm‖ Premier‘s suspicion that
    Rohn was acting in a retaliatory manner. 
    Id. 28 Premier also
    argues ―that the absence of a
    notice of appeal within 60 days is a factor in the Pioneer test
    as it pertains to the length of the delay, the reason for the
    delay and whether counsel acted in good faith and the
    prejudice to Premier for the delay.‖ (Premier‘s Brief at 26.)
    For instance, Premier asserts that the delay at issue here ―was
    from January 5, 2010 to June 8, 2011.‖ (Id. at 30.) While
    these kinds of considerations do not appear to be totally
    irrelevant to the Pioneer inquiry, we note that Premier itself
    acknowledges that this Court ―has already ruled that for the
    purpose of the motion for extension of time a notice of appeal
    is not required within the 60 days.‖ (Id. at 26.) Observing
    that any subsequent delay was largely caused by the judicial
    proceeding itself, the District Court appropriately focused on
    ―the circumstances as they existed on March 2, 2010, when
    the plaintiff filed his Rule 4(a)(5) motion.‖ Ragguette, 
    2011 WL 2359920
    , at *1.
    29
    We begin, like the District Court, with the ―reason for
    the delay‖ factor. We agree with Premier that the District
    Court abused its discretion in its evaluation of this particular
    factor. We accordingly must reject Ragguette‘s theory that
    there was a reasonable explanation for the delay and that this
    delay resulted from various circumstances beyond the control
    of his counsel. Simply put, it cannot be said that Ragguette‘s
    attorney ―has exhibited substantial diligence, [and]
    professional competence, . . . but as the result of some minor
    neglect, compliance was not achieved.‖ 
    Consolidated, 827 F.2d at 920
    . In addition, Ragguette‘s counsel clearly ―fail[ed]
    to provide for . . . readily foreseeable consequence[s].‖ 
    Id. at 919 (citations
    omitted).
    Because we ultimately conclude that the District
    Court abused its discretion by finding that Ragguette
    established excusable neglect, we need not—and do not
    reach—the various evidentiary challenges raised by Premier
    in its appeal (i.e., challenging the unsworn statements made
    by Rohn in the motion papers as well as at the hearing itself).
    On the other hand, we do reject Ragguette‘s theory that the
    Rohn-Cameron e-mail chain was covered by the attorney-
    client privilege, protected by the attorney work product
    doctrine, and had been obtained pursuant to an improper
    order issued by the District Court in conjunction with a
    consolidated recusal motion. We note that, among other
    things, Ragguette did not object to the submission of these
    documents to the District Court in connection with his Rule
    4(a)(5) motion, and, on the contrary, Rohn actually relied on
    this documentation at the Rule 4(a)(5) hearing.
    30
    Initially, the District Court found that the failure to file
    the notice of appeal was caused by attorney inadvertence—
    specifically Rohn‘s own failure ―to complete an additional
    step in the computer process in her office,‖ which meant that
    ―her staff never received the instructions to perfect an
    appeal.‖ Ragguette, 
    2011 WL 2359920
    , at *1. We add that it
    appears highly doubtful that the firm‘s relatively new motions
    or appellate attorney would have understood that she was to
    have prepared and filed a notice of appeal based on the
    following cursory comment on the annotated memorandum
    opinion: ―*Scan in as ‗thoughts Re appeal‘.‖ (A357.) In
    fact, the associate apparently did exactly what the comment
    told her to do—she had the document scanned. It is also
    unclear when exactly Cameron left the firm and how long her
    replacement had been working there by the time the notice of
    appeal had to be filed. In any case, we believe that a
    reasonably competent attorney would have exercised more
    supervision and control over a purportedly new and
    inexperienced subordinate. Rohn, at the very least, should
    have done more than make a number of vague annotations on
    the district court‘s ruling and should have anticipated that a
    relatively new employee would need more direction. We also
    are troubled by the fact that Rohn essentially and rather
    conveniently sought to shift at least some of the blame from
    herself to another person (who actually was no longer with
    the firm by the time of the Rule 4(a)(5) hearing, did not
    submit any declaration in support of the motion, and did not
    appear at the hearing itself).
    Rohn likewise acknowledged that she personally failed
    to create the requisite ―computer task‖ as per her firm‘s usual
    31
    practices. She thereby clearly carried at least partial
    responsibility for the breakdown in her firm‘s internal
    procedures. In fact, the failure to create the critical computer
    task meant that this system was never really triggered in the
    first place.
    We add that the firm‘s own procedures had some
    serious deficiencies of their own. As noted above, the proper
    completion of a computer task was evidently necessary to
    trigger this computer tracking system in the first place.
    Turning to the more significant matter of the ECF system, we
    do acknowledge that attorneys, especially well-established
    lawyers like Rohn, could have difficulties adjusting to this
    mechanism of electronic case filing (as well as other
    computer procedures). However, it is also undisputed that
    Rohn herself had previously registered as an ECF user
    sometime before the beginning of 2010. Rohn (or at least
    someone in her office using her ECF account) has actually
    filed numerous documents in this heavily litigated case via
    the ECF system since September 2007. If a notice of appeal
    had actually been filed (as Rohn evidently believed it had
    been), a notice of such a filing would have immediately been
    sent via e-mail to any and all attorneys who had previously
    entered an appearance in the District Court proceeding.
    Accordingly, Rohn should have known that no notice of
    appeal had been filed because neither Rohn nor any other
    attorneys from her firm who had entered an appearance in this
    case ever received any notice of such a filing. Having not
    received such a notice, any reasonably competent attorney
    would have looked into whether a notice of appeal had been
    32
    properly filed—especially where such a critical task had been
    assigned to a relatively new subordinate.
    At the Rule 4(a)(5) hearing, Rohn actually
    acknowledged that ―all the ECF filings in my office, even
    directed to me internally through technology, go to the
    attorney who is actually in charge of monitoring those,‖ and
    that Rohn herself ―wouldn‘t have gotten an ECF back.‖
    (A440.) At the very least, we believe that such an
    arrangement was highly problematic. In particular, a
    reasonably competent attorney who did not personally receive
    or otherwise look at ECF notices would have to set up some
    sort of additional method of keeping track of filings,
    especially those filings submitted under her own ECF account
    as well as critical filings like a notice of appeal. Such an
    attorney would at least attempt to make sure that a notice of
    appeal had been filed within the applicable 30-day period by,
    for example, simply asking the subordinate whether—and
    when—she had filed this critical document.
    In fact, we previously turned to the ECF filing system
    as a basis for rejecting a claim of excusable neglect. In Nara
    v. Frank, 
    488 F.3d 187
    (3d Cir. 2007), we concluded that ―the
    Commonwealth‘s overall negligence in handling the [28
    U.S.C. § 2254 habeas] matter precludes us from finding
    ‗excusable neglect‘‖ under Federal Rule of Civil Procedure
    60(b) with respect to the Commonwealth‘s failure to file
    timely objections to the magistrate judge‘s report and
    recommendation, 
    id. at 194. We
    noted, among other things,
    that: ―[A]ttorneys practicing in the Western District of
    Pennsylvania were under a standing order to register with the
    33
    Case Management/Electronic Case Files (CM/ECF) system
    by July 1, 2005. If the Commonwealth‘s attorneys had
    complied with that order, they would have received
    immediate electronic notification that the Magistrate Judge
    had issued the R & R and could have accessed it by hyper-
    link.‖ 
    Id. (footnotes omitted). In
    turn, ―[t]he
    Commonwealth‘s Attorneys based in Harrisburg were
    required to register in the Middle District of Pennsylvania in
    2003.‖ 
    Id. at 194 n.12
    (citation omitted). Because of the lack
    of excusable neglect, we proceeded to apply a plain error
    standard of review. 
    Id. at 193-97. It
    is well established that a busy caseload generally
    does not constitute a basis for a finding of excusable neglect.
    See, e.g., Pedereaux v. Doe, 
    767 F.2d 50
    , 52 (3d Cir. 1985)
    (―That counsel spent much of the latter period preparing for
    the trial of other matters does not excuse the failure to attend
    to the insubstantial task of filing a notice of appeal.‖).
    Ragguette accordingly denies ever advancing such a theory in
    the first place. But he also continues to highlight his
    counsel‘s busy schedule during the relevant time period. For
    example, Rohn raised the issue of her own caseload at the
    hearing, purportedly in order to provide an explanation as to
    why she would not necessarily have seen a notice of appeal
    before its filing and why she would not have known that no
    such notice had been prepared and filed. We believe that
    Ragguette‘s attorney thereby attempted to draw too fine of a
    distinction. Simply put, the busy caseload was essentially
    offered as an ―excuse‖ for ―the failure to attend to the
    insubstantial task of filing a notice of appeal.‖ 
    Id. We also believe
    that a reasonably competent attorney would have
    34
    better managed her own caseload and would have done more
    to make sure that the critical task of properly filing a notice of
    appeal was completed despite how busy she may have been at
    the time.
    We likewise determine that Rohn clearly failed to
    exercise reasonable diligence in uncovering the fact that no
    notice of appeal had been filed and then bringing this mistake
    to the attention of the opposing party and the District Court.
    This Court previously rejected the ―contention that Rule
    4(a)(5) provides an absolute 30 day grace period‖ and held
    that ―‗excusable neglect‘ must be shown up to the actual time
    the motion to extend is filed.‖ 
    Id. at 51. ―It
    simply is not
    overly burdensome to require a putative appellant, who has
    already missed the 30 day . . . mandatory appeal date of Rule
    4(a)(1) because of ‗excusable neglect,‘ to file immediately a
    Rule 4(a)(5) motion to extend when the excuse no longer
    exists.‖ 
    Id. at 52. In
    this case, a reasonably diligent attorney
    certainly could have—and should have—discovered the fact
    that no notice of appeal had been filed (or at least taken steps
    to investigate the matter) when: (1) Premier filed its original
    fee motion on January 13, 2010; (2) Ragguette‘s opposition to
    this fee motion was filed (via the ECF system under Rohn‘s
    own account) on January 28, 2010; (3) the District Court
    entered an order on February 8, 2010 scheduling a hearing on
    the fee motion for February 23, 2010; (4) on February 24,
    2010, the District Court rescheduled the fee hearing for
    March 1, 2010; (5) no ECF notice was ever received
    indicating the filing of a notice of appeal; (6) no ECF notices
    were ever received with respect to a number of documents
    sent out by the District Court‘s Clerk (a receipt for payment
    35
    of the requisite filing fee for an appeal) as well as the Third
    Circuit‘s Clerk (the initial case opening letter and the
    assignment of the case caption) immediately after the filing of
    a notice of appeal; and (7) similarly, no ECF notices (or hard
    copies of the documents themselves) were ever received
    indicating that the parties filed various documents due shortly
    after the commencement of an appeal (i.e., entry of
    appearance, disclosure statement, civil appeal information
    statement, concise summary of the case, and transcript
    purchase order).4 Yet Rohn purportedly did not discover that
    4
    In passing, Ragguette contends that there was no
    evidence in the record to support Premier‘s representations
    that Rohn should have received ECF notices for various
    filings and that, in fact, the record actually established the
    contrary. We, however, must reject his assertions given the
    well-established nature of the procedures at issue here. For
    instance, we observe that the docket sheet for Ragguette‘s
    successful appeal from the District Court‘s initial denial of his
    Rule 4(a)(5) motion indicated that the following documents
    were filed (and served) shortly after the May 20, 2010 filing
    of his notice of appeal via Rohn‘s ECF account: (1) on May
    21, 2010, the receipt for payment of the appellate filing fee;
    (2) on May 26, 2010, the initial case opening letter, the
    assignment of the case caption, and an order advising the
    parties of the Court‘s practice of holding Virgin Islands
    sittings twice a year as well as tentatively listing this case for
    May 2011; (3) on May 28, 2010, an entry of appearance from
    Premier‘s counsel and Premier‘s disclosure statement; (4) on
    June 11, 2010, a follow-up letter from the Third Circuit
    Clerk‘s Office to Rohn requesting the submission of an entry
    36
    no notice of appeal had been filed until her preparation for the
    March 1, 2010 fee hearing—approximately a month after the
    deadline for filing a notice of appeal and approximately two
    months after the District Court‘s summary judgment order.
    Nevertheless, she still did not even mention the mistake or the
    possibility of an appeal at the hearing conducted on March 1,
    2010. Even though she claimed that that she did do so
    because she wanted to obtain verification, we must reject
    such an excuse given her prior—and extensive—lack of due
    diligence. We also note that a reasonably competent
    attorney—having just discovered that a notice of appeal had
    not been filed almost a month after the deadline had already
    expired and immediately before a previously scheduled
    hearing—would have exercised more diligence in obtaining
    verification prior to the hearing and would have then brought
    this critical matter to the immediate attention of opposing
    counsel and the judge.
    We thereby determine that the District Court erred in
    its assessment of the ―reason for the delay‖ factor. Contrary
    of appearance form, a civil case information statement, a
    concise summary of the case, and a transcript purchase order
    on or before June 25, 2010; and (5) on June 25, 2010, an
    entry of appearance from Rohn as well as a civil case
    information statement, concise summary of the case,
    disclosure statement, and transcript purchase order. Again,
    we emphasize that the fact that the ECF filings purportedly
    went to Rohn‘s new motions attorney—and were not
    otherwise received or monitored by Rohn herself—weighs
    against any finding of excusable neglect.
    37
    to the District Court‘s characterization, this factor strongly
    weighs against any finding of excusable neglect. We,
    however, must still address the District Court‘s assessment of
    the remaining Pioneer factors. ―Under Pioneer, a court must
    take into account all relevant circumstances surrounding a
    party‘s failure to file, and failing to disprove ‗reasonable
    control‘ is not necessarily fatal to a petitioner‘s request for
    relief. To state it differently, the ‗control‘ factor does not
    necessarily trump all the other relevant factors.‖ George
    Harms Constr. Co. v. Chao, 
    371 F.3d 156
    , 164 (3d Cir. 2004).
    Therefore, while prejudice to the opposing party, disruption
    of efficient judicial administration, and bad faith are
    frequently absent, the mere fact that ―those factors may nearly
    always favor‖ the moving party does not mean that they can
    be ignored. 
    Id. We nevertheless must
    conclude that the other Pioneer
    factors, at best, provide only minimal support for the District
    Court‘s ―excusable neglect‖ finding. Accordingly, they are
    clearly insufficient to outweigh the ―reason for the delay‖
    factor.
    It is well established that, as Ragguette points out, ―a
    finding of prejudice should be a conclusion based on facts in
    evidence.‖ In re O‘Brien Envt‘l Energy, Inc., 
    188 F.3d 116
    ,
    127 (3d Cir. 1999). In other words, prejudice does not consist
    of ―an imagined or hypothetical harm,‖ and, on the contrary,
    prejudice generally occurs where, for instance, the opposing
    party has lost evidence or placed substantial reliance on the
    judgment or there is an increased potential for fraud or
    collusion. 
    Id. The District Court
    appropriately noted that
    38
    Premier would have faced the prospect of a trial even if its
    opponent had filed a notice of appeal within the applicable
    30-day period. ―Nor is there evidence that defendant has
    incurred any significant costs since the entry of judgment, or
    that it will incur significant costs connected to this motion.‖
    Ragguette, 
    2011 WL 2359920
    , at *1.           The District Court,
    at the very least, ultimately accorded too much weight to this
    particular factor in the current circumstances. In particular,
    Premier points out that it was certain there would be no
    appeal once the 30-day period to file a notice of appeal had
    expired and no notice of appeal (or Rule 4(a)(5) motion) had
    been either filed or served within this 30-day period. Viewed
    in isolation, this contention overlooks a number of well-
    established mechanisms available to pursue an appeal even in
    absence of an otherwise timely notice of appeal, including
    Rule 4(a)(5) itself. We, however, are not confronted here
    with the more typical situation of an appellant who, while still
    managing to serve the notice of appeal on the opposing party
    in a timely fashion, failed to file a notice of appeal with the
    district court within the generally applicable 30-day period
    due to some sort of unfortunate oversight. As we have
    already discussed in some detail, Rohn never indicated to
    opposing counsel or the District Court the possibility of an
    appeal until the Rule 4(a)(5) motion was filed on March 5,
    2010. In fact, a fee hearing was actually held before the
    District Court only days before the expiration of the 60-day
    period established by Rule 4(a)(5), and, yet again, not a word
    was said about any possible appeal. Given these
    circumstances, Premier could have been led to believe that its
    adversary did not intend to appeal from the District Court‘s
    order granting its summary judgment motion and that the only
    39
    remaining issue in the litigation was the subsidiary question
    of fees and costs.
    We reach the same basic conclusion with respect to the
    ―length of the delay and its potential impact on the judicial
    proceedings‖ factor. The length of the delay must be
    examined in ―absolute terms‖ or in an ―absolute sense,‖
    meaning that the extent of the delay should be considered in
    isolation. 
    O‘Brien, 188 F.3d at 129-30
    ; see also, e.g.,
    Orthopedic Bone 
    Screw, 246 F.3d at 325
    . The District Court
    reasonably observed that ―[t]he delay, measured at the time
    Ragguette filed his motion, was twenty-nine days, but within
    the time for filing the Rule 4 motion.‖ Ragguette, 
    2011 WL 2359920
    , at *1. While it appropriately found that such a
    delay ―was not inordinate,‖ 
    id., this finding must
    still be
    weighed against the other Pioneer factors. We also cannot
    overlook the fact that Ragguette filed his motion on Friday,
    March 5, 2010—the 59th day of the 60-day period. He only
    had one more business day—Monday, March 8, 2010—left to
    seek relief under Rule 4(a)(5). In other words, this is not a
    case where a party filed the Rule 4(a)(5) motion within the
    original 30-day period for filing a notice of appeal or even
    just a few days after this initial period had expired.
    Finally, we agree with the District Court that neither
    Ragguette nor Rohn appeared to act in bad faith, at least in
    the specific sense of engaging in outright misconduct or
    inequitable behavior. Nevertheless, we still cannot overlook
    the manifest lack of diligence on the part of Ragguette‘s
    attorney and, in particular, the multiple opportunities she had
    to discover the failure to file a notice of appeal and then to
    40
    attempt to remedy such a clear and serious mistake. Most
    significantly, even though Rohn finally discovered what
    happened when preparing for the March 1, 2010 fee hearing,
    she did not even mention this discovery or a possible appeal
    at the hearing itself. While her intent to obtain verification
    was perhaps understandable, such a justification does not
    really carry much weight here, especially given the clear
    deficiencies with respect to how Rohn and her firm handled
    the filing of a notice of appeal, her lack of due diligence, and
    her status as an experienced litigator. Even if there was ―no
    reason to believe that [Rohn] ever acted in bad faith,‖ we
    cannot conclude that she was ―so careful or vigilant as to
    overcome the weight‖ of the ―reason for the delay‖ factor. In
    re Am. Classic Voyages Co., 
    405 F.3d 127
    , 134 (3d Cir.
    2005) (determining that bankruptcy court did not abuse
    discretion by finding that failure to file claim by bar date did
    not qualify as excusable neglect and also specifically stating
    that party‘s care and vigilance were not sufficient to
    overcome weight of other factors—especially ―second‖
    factor).
    In the end, we must conclude that the District Court
    abused its discretion. While we acknowledge the deferential
    nature of our review, it is clear that the ―reason for the delay‖
    factor strongly weighs against any finding of excusable
    neglect. It is also clear that the remaining factors, at best,
    provide only minimal support for such a finding and thereby
    cannot overcome the weight of the ―reason for the delay‖
    41
    factor.5 In other words, the Court is confronted in this case
    with more than the simple and understandable ―failure to
    proofread a caption‖ at issue in 
    Consolidated. 827 F.2d at 921
    . In fact, counsel—unlike her counterpart in
    Consolidated—never even managed to draft a notice of
    appeal within the applicable 30-day period, and, accordingly,
    there was no ―timely service of the Notice of Appeal upon
    opposing counsel.‖ 
    Id. at 920. We
    likewise are not dealing
    here with anything comparable to Pioneer‘s ―unusual form of
    notice.‖ 
    Pioneer, 507 U.S. at 399
    .
    More broadly, we note that a ruling in favor of
    Ragguette in the current circumstances could be read as
    condoning and even rewarding otherwise avoidable
    mistakes—and even outright incompetence—on the part of
    even experienced attorneys. Far from deterring such
    mistakes, such a signal could lead to yet more claims of
    excusable neglect premised on attorney incompetence in
    connection with the critical—yet relatively simple—step of
    filing a notice of appeal within the applicable time period for
    doing so.
    IV.
    5
    Given this assessment of the Pioneer factors, we need
    not—and do not—decide whether a prior panel of our Court
    was correct to suggest in dicta that the ―danger of prejudice‖
    factor constitutes ―the most important [factor] of all.‖ Diet
    
    Drugs, 401 F.3d at 154
    .
    42
    For the foregoing reasons, we determine that the
    District Court improvidently granted Ragguette‘s motion for
    an extension of time to file a notice of appeal under Federal
    Rule of Appellate Procedure 4(a)(5). We accordingly will
    dismiss Ragguette‘s appeal for lack of appellate jurisdiction.
    43