Facciola, et al v. Greenberg Traurig, LLP, et al

Filing 481

ORDER GRANTING Plaintiffs' 477 Motion to Extend, DENYING Motion for Reconsideration and GRANTING Motion for Expedited Ruling. Signed by Judge Frederick J Martone on 12/4/2012. (See Order for details.)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Facciola, et al.,
Plaintiffs,

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vs.

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Greenberg Traurig LLP, et al.,
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Defendants.
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No. CV-10-1025-PHX-FJM
ORDER

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Lead plaintiffs have filed a motion to extend time to appeal or alternatively for

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reconsideration, and a motion for expedited ruling (doc. 477). Plaintiffs ask us to reconsider

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our order finding moot their motion for entry of final judgment in favor of the MHM

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defendants (doc. 476). In that order we concluded that the entry of a separate final judgment

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in favor of MHM was unnecessary because the filing of the final judgments against

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Greenberg and Quarles disposed of the entire case leaving nothing pending in this action.

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Once those final judgments were entered, the earlier interlocutory orders involving MHM

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became final and appealable. See American Ironworks & Erectors Inc. v. North Am. Constr.

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Corp., 248 F.3d 892, 897-98 (9th Cir. 2001).

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Plaintiffs now express concern that they must appeal from the Greenberg and Quarles

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final judgments calling into question the finality of those judgments and leaving open the

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possibility of a delay in the distribution of the settlement proceeds. We disagree. Plaintiffs

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can appeal the two orders entered in favor of MHM (docs. 200 and 289) which became final

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and appealable as a result of the entry of the judgments resolving all claims in this action.

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They would not need to appeal the judgments entered against Greenberg and Quarles. See

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Fed. R. App. 3(c)(1)(B) (a notice of appeal must “designate the judgment, order, or part

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thereof being appealed.”); 16A Wright & Miller, Fed. Prac. & Proc. § 3949.4 (4th ed. 2012);

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Finch v. Fort Bend Ind. Sch. Dist., 333 F.3d 555, 565 (5th Cir. 2003) (“When an appellant

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chooses to appeal specific determinations of the district court–rather than simply appealing

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from an entire judgment–only the specified issues may be raised on appeal.”). Accordingly

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we deny plaintiffs’ motion to reconsider this ruling.

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We grant plaintiffs’ motion to extend the time to appeal. We may extend the time to

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file a notice of appeal if the party shows excusable neglect or good cause. Fed. R. App. P.

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4(a)(5)(A)(ii). In considering a motion to extend the time to appeal we will consider (1) the

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reason for the delay, (2) whether the moving party acted in good faith, (3) the danger of

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prejudice to the non-moving party, and (4) the length of delay and its potential impact on

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judicial proceedings. Pincay v. Andrews, 389 F.3d 853, 855-56 (9th Cir. 1996). Each of

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these factors weighs in favor of an extension. Lead plaintiffs acted diligently and in good

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faith in structuring the Greenberg and Quarles final judgments so as to avoid delay in

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disbursing settlement proceeds. MHM would not be prejudiced by the delay because

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plaintiffs have consistently made known their intention to appeal. The length of the delay

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is insubstantial and will not affect future judicial proceedings. Accordingly, we find

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plaintiffs’ neglect excusable and grant plaintiffs’ motion to extend the time to appeal the

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orders in favor of MHM. Plaintiffs’ notice of appeal must be filed no later than 14 days from

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the entry of this order. See Fed. R. App. P. 4(a)(5)(C).

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IT IS ORDERED GRANTING lead plaintiffs’ motion to extend, DENYING the
motion for reconsideration, and GRANTING the motion for expedited ruling (doc. 477).
DATED this 4th day of December, 2012.

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