Opinion
CIVIL ACTION NO. 01-5565
November 13, 2003
MEMORANDUM
I. BACKGROUND
Plaintiff brought this action under Title I of the American with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964 alleging discrimination on the basis of disability, race, and gender. By order entered July 17, 2003, this court granted defendant's motion for summary judgment and dismissed all claims. Adefumi v. City of Philadelphia, Free Library, 2003 U.S. Dist. LEXIS 12550 (E.D. Pa. Jul. 17, 2003). Plaintiff filed a motion for extension of time on August 22, 2003, five days after the thirty day time limit for timely filing of a notice of appeal had expired. Presently before the court is plaintiff's motion for extension of time to file a notice of appeal.
II. DISCUSSION
Fed.R.App.P. 4(a)(1) provides that the district court, upon showing of excusable neglect or good cause, may extend time for filing of a notice of appeal upon motion filed not later than 30 days after expiration of the first 30 day period established in Rule 4(a)(1).
Here, plaintiff's counsel filed the motion for extension of time five days after the first 30 day time limit. Therefore, the only question is whether the justification for the delay satisfies the requirements of Rule 4(a)(5).
As explained in the advisory committee note to the 2002 Amendment to Rule 4(a)(5), effective December 1, 2002, a motion brought under Rule 4(a)(5) may be granted for either excusable neglect or good cause. See Fed.R.App.P. 4 advisory committee's note. The amendment corrects the previous interpretation adopted by most circuits, which held that the "good cause" standard applies only to motions brought prior to the expiration of the original deadline and that motions brought during the thirty days after the original deadline must satisfy the more stringent "excusable neglect" standard. See Gibbons v. United States, 317 F.3d 852, 854 n. 3 (8th Cir. 2003).
In this case, this distinction is meaningless because the standards for "good cause" and "excusable neglect" are apparently indistinguishable in the Third Circuit. See Ryder v. Costello. 2000 U.S. Dist. LEXIS 7358 *6 (E.D. Pa. May 31, 2000) (citing Amatengelo v. Borough of Donora, 212 F.3d 776, 780 (3d Cir. 2000); Mettle v. First Union Bank, 2003 U.S. Dist. LEXIS 14707 *16 (D.N.J. Aug. 18, 2003) (citing Petrucelli v. Bohringer Ratzinaer, 46 F.3d 1298, 1304 n. 11 (3d Cir. 1995)).
The Third Circuit has identified some factors relevant to the inquiry of whether a party's neglect is excusable. They are as follows: (1) the danger of prejudice to the nonmovant; (2) the length of the 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; (4) whether the movant acted in good faith; (5) whether the inadvertence reflected professional incompetence such as ignorance of the rules of procedure; (6) whether an asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court; and (7) whether the neglect resulted from complete lack of diligence. See Home Insurance Co. v. Law Offices of Jonathan Devouncr, 156 F. Supp.2d 488, 490-91 (E.D. Pa. 2001); Consolidated Freightways Corp. of Del, v. Larson, 827 F.2d 916, 919 (3d Cir. 1987).
In the instant case, plaintiff's counsel claims that the filing date was missed because of his "severe, debilitating and deteriorating form of Crohn's Disease (as well as Liver Disease/Hepatitus and anemia)." According to plaintiff's counsel, he "is frequently incapacitated by large and small bowel obstructions and corresponding complications relating to his conditions, often resulting in either hospitalization and surgery or lengthy periods of convalescence at his home." Plaintiff's counsel further asserts that "[a]s relates to the instant matter, [plaintiff's counsel] recently suffered from complications resulting from a sudden onset of partial bowel obstruction, causing him to be completely incapacitated, as well as, requiring an aggressive modification of his existing drug protocol, the results of which kept [counsel] incapacitated for a period of over a week." In addition, plaintiff's counsel represents that his law firm "is a small four man firm, which despite the remaining attorney's best efforts to adequately cover [counsel's] significant caseload during his absence, inadvertently missed the filing deadline within which to appeal the instant matter."
On the other hand, defendant argues that an extension is not justified in this case because plaintiff has not shown excusable neglect or good cause. Defendant argues that plaintiff's counsel has provided no legitimate explanation as to why the other three members of his firm could not file the notice of appeal on his behalf. See, e.g., Meza v. Washington State Dep't of Social and Health Services, 683 F.2d 314, 315 (9th Cir. 1982).
The court finds that the issue is extraordinarily close. However, given the harsh result which would be imposed on the innocent plaintiff-litigant by denying the motion, the corresponding lack of prejudice to defendant, the apparent good faith effort of plaintiff's counsel as evidenced by the relatively short period of delay in filing this motion, and the public interest implicated in proper adjudication of the underlying civil rights action, the motion will be granted.
An appropriate order follows.
ORDER
AND NOW, this ___ day of November 2003, upon consideration of plaintiff's motion for extension of time to file a notice of appeal (doc. no. 33) and defendant's response thereto, it is hereby ORDERED that the motion is GRANTED.
It is FURTHER ORDERED that plaintiff' shall file a notice of appeal by November 24, 2003.
AND IT IS SO ORDERED.