M. et al v. Lafayette School District et al

Filing 175

ORDER GRANTING PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO APPEAL THE COURT'S POST-JUDGMENT ORDER ON ATTORNEY FEES 170 (Illston, Susan) (Filed on 11/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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M.M. & E.M.,

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United States District Court
For the Northern District of California

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No. CV 09-4624 and 10-04223
Plaintiffs,

ORDER GRANTING PLAINTIFFS’
MOTION FOR EXTENSION OF TIME
TO APPEAL THE COURT’S POSTJUDGMENT ORDER ON ATTORNEY
FEES

v.
LAFAYETTE SCHOOL DISTRICT,

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Defendant.

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Pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A), plaintiffs have moved for an

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extension of time to file an appeal of this Court’s August 8, 2012, order on attorney fees. See Dkt. 167.

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Defendant has filed an opposition and plaintiffs have filed a reply.1 Pursuant to Civil Local Rule7 -1(b),

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the Court finds these matters appropriate for resolution without oral argument. After reviewing the

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parties’ arguments, and for good cause shown, the Court hereby GRANTS plaintiffs’ motion.

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Under Federal Rule of Appellate Procedure 4(a)(1)(A), plaintiffs had 30 days from August 8,

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2012, to appeal the Court’s order on attorney fees. Plaintiffs filed their appeal on September 11, 2012,

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four days after the deadline. Plaintiffs’ counsel admits to missing the deadline, “due to a confluence of

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multiple factors” including a calendering mistake, distraction from intervening events, and grief from

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the death of a long-time friend. Foltz Decl. ¶¶ 3, 10, 16-18. Defendant opposes the motion for several

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reasons: (1) plaintiffs’ counsel’s calendering mistake constitutes negligence, not excusable neglect; (2)

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plaintiffs’ counsel could not have been as distracted by intervening events as she claims to have been

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Rarely does a discretionary motion to extend time generate the volume of filings found here.
What the Court of Appeal has already characterized as a “convoluted procedural history” continues
unabated. "This case began as a dispute over the results of CM's special education evaluation under the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (‘IDEA’), but now has a
convoluted procedural history, including three separate district court lawsuits and two administrative
complaints." M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1083 (9th Cir. 2012).

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because the evidence shows that she did perform some work on this and other cases during that time;

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(3) while the “loss of a loved one is...difficult, Plaintiffs’ counsel was obviously not incapacitated” by

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it, as evidenced by her participation in other matters in this case (Def. Opp. at 7); and (4) defendants

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were prejudiced by plaintiffs’ failure to timely file a notice of appeal because defendants’ participation

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in the September 10, 2012, mediation, three days after the deadline to file, was “tangibly informed” by

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the fact that plaintiffs had missed the deadline. Defendant’s counsel further suggests that plaintiffs’

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counsel filed the late appeal on September 11, 2012, because of disappointment with the results of the

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September 10, 2012, mediation. Def. Opp. at 9.
The district court has discretion to extend the time to file a notice of appeal where a “party shows

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United States District Court
For the Northern District of California

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excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). The Court is aware of no authority for

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the proposition that counsel must be “incapacitated” in order to qualify for an extension of time to file

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an appeal. Here, where plaintiffs’ counsel made a showing that extraneous factors caused the untimely

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filing, nothing more is required. While defendant argues that it would suffer prejudice because its

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mediation position was informed by plaintiff’s failure to timely appeal, that prejudice is minimal here,

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where the parties’ mediation papers were prepared and due several days prior to September 10, 2012.

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Foltz Decl. II ¶ 11, 13. Presumably, therefore, defendant prepared for mediation with no certainty as

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to whether plaintiffs would file an appeal.

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For good cause shown, the Court hereby GRANTS plaintiffs’ motion.

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IT IS SO ORDERED.
Dated: November 6, 2012
SUSAN ILLSTON
United States District Judge

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