Mortensen v. Bank of America Home Loans Servicing et al

Filing 104

ORDER denying 99 Motion for Extension of Time to File Civil Appeal Statement with the Court of Appeals. Signed by Chief Judge William H. Steele on 6/12/2011. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ROBERT MORTENSEN,
Plaintiff,
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., et al.,
Defendants.
BAC HOME LOANS SERVICING, LP,
Counterclaim Plaintiff,
v.
ROBERT MORTENSEN,
Counterclaim Defendant.

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CIVIL ACTION 09-0787-WS-N

ORDER
This matter comes before the Court on plaintiff/counterclaim defendant Robert
Mortensen’s filing styled “Motion to Extend Time to File Civil Appeal Statement with the Court
of Appeals” (doc. 99), which was filed by new counsel appearing on his behalf.
On May 3, 2011, the undersigned signed an Amended Final Judgment (doc. 96)
dismissing all of Mortensen’s claims, declaring that Mortensen had defaulted on his mortgage
and that BAC Home Loans Servicing, LP is authorized to foreclose the mortgage, and entering
judgment in favor of BAC Servicing and against Mortensen in the amount of $127,442.44, plus
reasonable attorney’s fees of $111,344.60 and costs and expenses of $9,651.61. That Amended
Final Judgment was entered in the civil docket on May 4, 2011, such that the time for appeal
commenced running then. See Rule 4(a)(7)(A), Fed.R.App.P. (defining entry of a judgment for
appeal purposes).

Pursuant to Rule 4(a)(1)(A), Fed.R.App.P., a party in a civil case who seeks to appeal an
order or judgment to a court of appeals must file a notice of appeal with the district clerk “within
30 days after the judgment or order appealed from is entered.” Id. “[T]he timely filing of a
notice of appeal in a civil case is a jurisdictional requirement.” Advanced Bodycare Solutions,
LLC v. Thione Int’l, Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010) (citation omitted). To date,
Mortensen has never filed a notice of appeal from the May 3 Amended Final Judgment. The 30day period prescribed for doing so expired on June 3 (i.e., 30 days after entry of judgment on the
docket sheet). He now requests leave of court to file a Civil Appeal Statement out of time.1
The threshold defect in Mortensen’s Motion to Extend Time is that he is asking for an
enlargement of time to file the wrong document to commence an appeal. Indeed, plaintiff asks
for an extension of time “to File a Civil Appeal Statement with the Court of Appeals.” (Doc. 99,
at 1.) But the Civil Appeal Statement is not due for filing with the Eleventh Circuit clerk until 14
days after the appeal is docketed. See 11th Cir. R. 33-1. To date, no appeal has been docketed
because Mortensen has not properly commenced an appeal under Rule 3, Fed.R.App.P. So
Mortensen is requesting enlargement of a filing period that has not yet begun to run. He has not
asked for an extension of time for filing his notice of appeal, which is the gateway document for
initiating an appeal, the deadline for which has expired. Moreover, he presents no authority, and
the Court is aware of none, that would confer upon a district court authority to extend the time
for filing a document with the Eleventh Circuit. (To be sure, district courts can extend time for
1

Specifically, Mortensen states that he seeks leave to file his “Civil Appeal
Statement” with the appellate court outside the 30-day limit. (Doc. 99.) In federal court, a party
commences an appeal not by filing a Civil Appeal Statement with the appeals court, but by filing
a barebones notice of appeal with the district court. See Rule 3(a)(1), Fed.R.App.P. (“An appeal
permitted by law as of right from a district court to a court of appeals may be taken only by filing
a notice of appeal with the district clerk within the time allowed by Rule 4.”); Rule 3(c)(1),
Fed.R.App.P. (explaining that a notice of appeal need only specify the party taking the appeal,
designate the judgment or order being appealed, and name the court to which appeal is taken).
The Eleventh Circuit’s Rules and Internal Operating Procedures are not to the contrary, but
simply provide that appellants “shall file with the clerk of the court of appeals … an original and
one copy of a completed Civil Appeal Statement within 14 days after the date the appeal is
docketed in this court.” 11th Cir. R. 33-1(a)(1). By the plain language of the Eleventh Circuit
rule, then, a “Civil Appeal Statement” is filed only after the appeal has already been commenced
via notice of appeal filed in district court. Unfortunately, Mortensen skipped over the first step
and proceeded right to the second.

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filing notices of appeal, but those notices are filed directly in district court.) For these reasons,
the Motion to Extend Time is properly denied.
If the Motion were construed liberally, it could perhaps be read as a motion for extension
of time for filing a notice of appeal (even though movant’s counsel does not use such
terminology in the Motion). But such a liberal construction, even if it were appropriate for a
motion filed by counsel, would not save the Motion. By rule, a district court may extend the
time for filing a notice of appeal beyond the 30-day window if “(i) a party so moves no later than
30 days after the time prescribed by this Rule 4(a) expires; and (ii) … that party shows excusable
neglect or good cause.” Rule 4(a)(5)(A), Fed.R.App.P. To satisfy the requisite showing of
excusable neglect, plaintiff’s counsel shows that he sent his “Civil Appeal Statement” to the
Eleventh Circuit, and that the appeals court clerk’s office received it on June 3, 2011 (which was
the 30th day after entry of judgment), but returned it to him because no notice of appeal had been
filed in the district court. See Rule 3(a)(1), Fed.R.App.P. Plaintiff’s counsel further shows that
he had sought to locate other appellate counsel for Mortensen, without success, then “[w]ith but
one day to file an appeal … worked around the clock to both prepare the Civil Appeals
Statement and attendant Exhibits.” (Doc. 99, ¶ 4.)
From the circumstances presented, it is readily apparent that Mortensen’s failure to file a
timely notice of appeal is attributable to a series of mistakes of law by his counsel. First, counsel
mistakenly believed that filing a comprehensive Civil Appeal Statement was necessary to initiate
an appeal, when Rules 3 and 4 of the Federal Rules of Appellate Procedure plainly require only a
simple, perfunctory notice of appeal. Second, counsel mistakenly believed that the appeal
documentation must be filed directly with the court of appeals, even though Rule 3(a) plainly
states that a notice of appeal is to be filed with the district clerk. Such errors could have been
avoided had counsel consulted Rules 3 and 4 of the Federal Rules of Appellate Procedure, as
well as the Eleventh Circuit’s Rule 33-1. Binding precedent demonstrates that such mistakes of
law cannot constitute excusable neglect under Rule 4(a)(5). See, e.g., Connecticut State Dental
Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1356 (11th Cir. 2009) (“it is true that this
circuit recognizes that an attorney’s misinterpretation of the law does not constitute excusable
neglect”); Advanced Estimating System, Inc. v. Riney, 130 F.3d 996, 998 (11th Cir. 1997)
(“Today, we follow the other circuits and hold, as a matter of law, that an attorney’s
misunderstanding of the plain language of a rule cannot constitute excusable neglect such that a
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party is relieved of the consequences of failing to comply with a statutory deadline.”).2 “The
ancient legal maxim continues to apply: ignorance of fact may excuse; ignorance of law does not
excuse.” Advanced Estimating, 130 F.3d at 999. This case is unquestionably a mistake-of-law
case, inasmuch as “the reason for [Mortensen]’s failure to file timely a notice of appeal was an
apparent failure to review or to appreciate the relevant rules.” Id.3
Mortensen’s only explanation for his failure timely to file a notice of appeal is his
attorney’s ignorance of the relevant rules, but such a mistake of law cannot constitute excusable
neglect. Accordingly, the Motion to Extend Time would be properly denied even if it were
liberally construed as a request under Rule 4(a)(5)(A) for extension of the time to file a notice of
appeal with the district clerk.
For all of the foregoing reasons, the “Motion to Extend Time to File Civil Appeal
Statement with the Court of Appeals” (doc. 99) is denied.

DONE and ORDERED this 12th day of June, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

2

That such mistakes of law were made by counsel rather than by client is of no
moment, because “clients must be held accountable for the acts and omissions of their
attorneys.” Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380,
396, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
3

The Court recognizes, of course, that the Supreme Court in Pioneer established a
series of factors to be considered in determining whether excusable neglect exists, to-wit: “the
danger of prejudice to the [opposing party], 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.” 507 U.S. at 395. The Court
also recognizes that the Eleventh Circuit has deemed it an abuse of discretion in certain
circumstances for a district court not to consider the Pioneer factors in an excusable-neglect
inquiry. See, e.g., Connecticut State Dental, 591 F.3d at 1356 (“In this case, the district court
abused its discretion because it did not even consider the Pioneer factors.”). But Eleventh
Circuit law is quite clear that, even after Pioneer, “a lawyer’s misunderstanding of clear law
cannot constitute excusable neglect.” Advanced Estimating, 130 F.3d at 998. Because that is
precisely what happened here, the analysis proceeds no further.

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