Filed: May 23, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1042 SYMBIONICS INC., Plaintiff - Appellant, v. CHRISTOPHER J. ORTLIEB, Defendant – Appellee, and AMY ORTLIEB; OPM, LLC; ATACC SYSTEMS, LLC; WARFIGHTER TECHNOLOGIES, LLC, Defendants. No. 10-1289 SYMBIONICS INC., Plaintiff - Appellee, v. CHRISTOPHER J. ORTLIEB, Defendant – Appellant, and AMY ORTLIEB; OPM, LLC; ATACC SYSTEMS, LLC; WARFIGHTER TECHNOLOGIES, LLC, Defendants. Appeals from the United States District Court for the
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1042 SYMBIONICS INC., Plaintiff - Appellant, v. CHRISTOPHER J. ORTLIEB, Defendant – Appellee, and AMY ORTLIEB; OPM, LLC; ATACC SYSTEMS, LLC; WARFIGHTER TECHNOLOGIES, LLC, Defendants. No. 10-1289 SYMBIONICS INC., Plaintiff - Appellee, v. CHRISTOPHER J. ORTLIEB, Defendant – Appellant, and AMY ORTLIEB; OPM, LLC; ATACC SYSTEMS, LLC; WARFIGHTER TECHNOLOGIES, LLC, Defendants. Appeals from the United States District Court for the ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1042
SYMBIONICS INC.,
Plaintiff - Appellant,
v.
CHRISTOPHER J. ORTLIEB,
Defendant – Appellee,
and
AMY ORTLIEB; OPM, LLC; ATACC SYSTEMS, LLC; WARFIGHTER
TECHNOLOGIES, LLC,
Defendants.
No. 10-1289
SYMBIONICS INC.,
Plaintiff - Appellee,
v.
CHRISTOPHER J. ORTLIEB,
Defendant – Appellant,
and
AMY ORTLIEB; OPM, LLC; ATACC SYSTEMS, LLC; WARFIGHTER
TECHNOLOGIES, LLC,
Defendants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:08-cv-00044-AJT-TRJ)
Argued: March 22, 2011 Decided: May 23, 2011
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Appeal dismissed; case remanded by unpublished per curiam
opinion.
ARGUED: Steven Martin Gombos, RITZERT & LEYTON, PC, Fairfax,
Virginia, for Appellant/Cross-Appellee. Christine Marie
Nicolaides, PILLSBURY, WINTHROP, SHAW & PITTMAN, LLP,
Washington, D.C., for Appellee/Cross-Appellant. ON BRIEF:
Gerald M. Ritzert, RITZERT & LEYTON, PC, Fairfax, Virginia, for
Appellant/Cross-Appellee. Karen-Faye McTavish, PILLSBURY,
WINTHROP, SHAW & PITTMAN, LLP, Washington, D.C., for
Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Symbionics, Inc., filed an untimely notice of appeal from
the district court judgment in the instant action between
Symbionics and Christopher J. Ortlieb. The district court
subsequently granted Symbionics’ motion for an extension of time
to file a notice of appeal, finding that an error associated
with counsel’s use of a computer calendar to calculate the
deadline constituted “excusable neglect” under Federal Rule of
Appellate Procedure 4(a)(5)(A). Ortlieb cross-appeals the
district court’s excusable neglect determination. Because we
conclude that the district court abused its discretion by
granting Symbionics’ motion for enlargement of time, we reverse
the judgment and dismiss Symbionics’ appeal for lack of
jurisdiction.
I.
This case arises out of a dispute between Symbionics, Inc.,
and its former president, Christopher J. Ortlieb. Symbionics
sued Ortlieb and other defendants 1 asserting claims of breach of
contract, breach of fiduciary duty, and tortious interference
with contractual relations, among other state law causes of
1
The named defendants included Appellees Amy Ortlieb; OPM,
LLC; and ATACC Systems, LLC. The claims against these Appellees
are not relevant to our disposition of this appeal.
3
action. Ortlieb brought various counterclaims against
Symbionics, including breach of contract, unjust enrichment, and
conversion. Following a bench trial, the district court granted
judgment for Symbionics as to its breach of fiduciary duty
claim, dismissed the remainder of Symbionics’ claims, and ruled
in favor of Ortlieb on his counterclaims. The district court
entered a final judgment on December 4, 2009.
Symbionics filed a notice of appeal on January 5, 2010, one
day after the expiration of the thirty-day time limit prescribed
by Federal Rule of Appellate Procedure 4(a)(1). See Fed. R.
App. P. 26(a) (providing method for computing time period). On
January 7, 2010, Symbionics then filed a timely motion for
extension of time to file a notice of appeal asking the court to
extend the filing deadline to January 5, and thereby render
timely Symbionics’ tardy notice of appeal. See Fed. R. App. P.
4(a)(5)(A)(i) (permitting party to move for extension of time to
file notice of appeal up to thirty days after expiration of
original thirty-day appeal period). In the memorandum
supporting its motion, Symbionics explained that a quirk in the
functionality of counsel’s computer calendar caused counsel to
miscalculate the deadline to appeal as January 5, 2010, rather
than the correct date of January 4, 2010. Counsel used the
Microsoft Windows Calendar, a standard application of the
Microsoft Windows operating system, to compute the date on which
4
the thirty-day period to appeal would end. The alleged glitch
occurred when, after counting twenty-seven days through December
31, 2009, counsel changed the month on the calendar display to
January in order to continue the computation. Counsel failed to
notice that the calendar did not automatically advance to
January 2010 but instead reverted to January 2009.
Consequently, counsel mistakenly referenced the January 2009
calendar when he completed the calculation of the thirty-day
window to appeal, which resulted in counsel’s erroneous
determination that the deadline was January 5.
The district court granted Symbionics’ motion for
enlargement of time after concluding that Symbionics’ delay was
the result of “excusable neglect” within the meaning of Rule
4(a)(5)(A). Ortlieb timely cross-appealed on the ground that
the district court abused its discretion when it granted
Symbionics’ motion for an extension of time under the excusable
neglect standard. For the reasons set forth below, we agree
with Ortlieb.
II.
A.
We review for abuse of discretion a district court’s
extension of the Rule 4(a) time to appeal upon a finding of
excusable neglect. Thompson v. E.I. DuPont de Nemours & Co.,
Inc., 76 F.3d 530, 534 (4th Cir. 1996); United States v.
5
Borromeo, 945 F.2d 750, 754 (4th Cir. 1991). An abuse of
discretion manifests “in a failure or refusal, either express or
implicit, actually to exercise discretion, deciding instead as
if by general rule, or even arbitrarily, as if neither by rule
nor discretion.” James v. Jacobson,
6 F.3d 233, 239 (4th Cir.
1993). An abuse of discretion may also occur when a district
court fails “to take into account judicially recognized factors
constraining its exercise,” or when its action is tainted “by
erroneous factual or legal premises.”
Id.
B.
In a civil suit, a notice of appeal must be filed within
thirty days of the entry of the judgment. Fed. R. App. P.
4(a)(1). Compliance is “mandatory and jurisdictional” and the
district court may extend the deadline only under limited
circumstances. Bowles v. Russell,
551 U.S. 205, 209-10 (2007)
(internal quotation marks omitted). Rule 4(a)(5)(A) of the
Federal Rules of Appellate Procedure permits a district court to
extend the time to file a notice of appeal if a party shows
“excusable neglect or good cause.” 2 Symbionics’ Rule 4(a)(5)
2
Federal Rule of Appellate Procedure 4(a)(5)(A) provides:
Motion for Extension of Time
(Continued)
6
motion asserted excusable neglect by counsel, and the district
court evaluated the motion on that ground.
In Pioneer Investment Services Co. v. Brunswick Associates
Ltd. Partnership, 507 U.S. 380 (1993), the Supreme Court set
forth the factors to be considered in determining whether
excusable neglect exists. They are: “[1] danger of prejudice to
the [opposing party], [2] the length of delay and its potential
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.”
Pioneer, 507 U.S. at 395 (interpreting “excusable neglect” in
the context of Rule 9006(b)(1) of the Federal Rules of
Bankruptcy Procedure). We adopted the Pioneer factors for the
purpose of Rule 4(a)(5) in Thompson v. E.I. DuPont de Nemours &
Co., Inc.,
76 F.3d 530, 533 (4th Cir. 1996).
The district court weighed the first, second, and fourth
factors in Symbionics’ favor, finding no prejudice to Ortlieb,
(A) The district court may extend the time to file
notice of appeal if:
(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.
7
no material delay in the proceedings, and a good faith attempt
by Symbionics to comply with the rules. We agree. As a general
rule, the first two Pioneer factors will favor the moving party
because the time limits inherent in Rule 4(a)(5) necessarily
minimize the extent of any prejudice or delay. Silivanch v.
Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003).
Furthermore, the fourth Pioneer factor is rarely material, as
the absence of good faith is seldom at issue in excusable
neglect cases.
Id. Accordingly, the third Pioneer factor—the
untimely party’s reason for the delay—is the most important to
the excusable neglect inquiry.
Thompson, 76 F.3d at 534. It is
with respect to this critical third factor that our reasoning
departs from that of the district court.
In evaluating Symbionics’ excuse for its tardiness, the
district court correctly noted that the conception of excusable
neglect in Pioneer encompasses “where appropriate, . . . late
filings caused by inadvertence, mistake, or carelessness, as
well as by intervening circumstances beyond the party’s
control.” Pioneer, 507 U.S. at 388. The court also
acknowledged our observation in Thompson that “a mere concession
of palpable oversight or administrative failure generally has
been held to fall short of the necessary showing” for excusable
neglect.
Thompson, 76 F.3d at 534 (emphasis omitted) (quoting
In re O.P.M. Leasing Serv., Inc.,
769 F.2d 911, 917 (2d Cir.
8
1985)). Nevertheless, the court determined that the reason for
Symbionics’ delay was more than “mere administrative error
attributable solely to Symbionics’ negligence.” J.A. 997.
Instead, the court attributed Symbionics’ belated filing to “the
less than completely understood electronic workings of a
commonly used software product[,] . . . extraneous factors
independent of Symbionics’ negligence[, and] . . . unusual
circumstances.” J.A. 997-98. Based upon these premises, the
district court decided that Symbionics’ failure to file a timely
notice of appeal was the result of excusable neglect. We
disagree, and conclude that the court abused its discretion in
so deciding.
With due respect for the unique position of the district
court to evaluate the circumstances relevant to an excusable
neglect determination, we underscore the caution of our
precedent: “‘Excusable neglect’ is not easily demonstrated, nor
was it intended to be.” Thompson, 76 F.3d at 534. Indeed, “a
district court should find excusable neglect only in the
extraordinary cases where injustice would otherwise result.”
Id. (internal quotation marks omitted). These limiting
principles confine the circumstances under which a district
court may properly find excusable neglect, particularly in
instances of mere “inadvertence, mistake, or carelessness.”
Pioneer, 507 U.S. at 388.
9
We find nothing extraordinary or unusual about counsel’s
calendaring error that should relieve Symbionics of its duty to
comply with the time limit of Rule 4(a)(1). Counsel’s total
dependence on a computer application—the operation of which
counsel did not completely comprehend—to determine the filing
deadline for a notice of appeal is neither “extraneous” to nor
“independent” of counsel’s negligence. See J.A. 997. Rather,
the failure to discover that the calendar display had reverted
to January 2009, and the reliance on the resulting incorrect
deadline computation, are the very essence of counsel’s
negligence here. Furthermore, this neglect is precisely the
sort of “run-of-the-mill inattentiveness by counsel” that we
have consistently declined to excuse in the past. See, e.g.,
Thompson, 76 F.3d at 535.
III.
For the foregoing reasons, we hold that the district court
abused its discretion when it determined that Symbionics’
counsel’s computer calendaring error constituted excusable
neglect. We therefore reverse the order of the district court
granting Symbionics’ motion for extension of time to file a
notice of appeal and dismiss Symbionics’ underlying appeal for
10
lack of jurisdiction. 3 We remand to the district court for a
determination of appropriate attorneys’ fees, if any, that might
be due under the parties’ employment agreement.
APPEAL DISMISSED;
CASE REMANDED
3
We acknowledge the potential hardship of being denied an
appeal, but we believe that the burden to Symbionics is
negligible here. Had we reached the merits of Symbionics’
appeal, we would have affirmed the judgment of the district
court on the ground that the court’s findings were not
erroneous.
11
