Hopkins Manufacturing Corporation v. Cequent Performance Products, Inc.

Filing 55

MEMORANDUM AND ORDER denying 53 Motion for Extension of Time to File a Notice of Appeal. Signed by Chief District Judge Julie A Robinson on 8/4/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HOPKINS MANUFACTURING CORP.,
Plaintiff,
v.

Case No. 14-CV-2208-JAR

CEQUENT PERFORMANCE PRODUCTS,
INC.,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Cequent Performance Products, Inc.’s
Motion for Extension of Time to File a Notice of Appeal (Doc. 53) of the Court’s Memorandum
and Order denying attorneys’ fees entered on July 5, 2017.1 Plaintiff Hopkins Manufacturing
Corporation has filed a response.2 Therefore, the motion is fully briefed and the Court is
prepared to rule.3 For the reasoning explained more fully below, the Court denies Defendant’s
motion for extension of time to file its notice of appeal.
In a civil case, the notice of appeal must be filed with the district clerk within 30 days
after the entry of the judgment or order appealed from.4 However, if a party files in the district
court any of the following motions under the Federal Rules of Civil Procedure—and does so
within the time allowed by those rules—the time to file an appeal runs for all parties from the
entry of the order disposing of the last such remaining motion:
1

Doc. 52

2

Doc. 54.

3

The Court notes that the motion and response did not address the relevant standards for extension of time
to file a notice of appeal. Instead, the parties took the motion and response as an opportunity to address the merits of
whether a Rule 60 motion should be granted by this Court. This was neither helpful nor relevant to deciding the
motion before the Court.
4

Fed. R. App. P. 4(a)(1).

(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b);
whether or not granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54 if the district court extends
the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 28
days after the judgment is entered.5
None of these motions have been filed.6
The district court may extend the time to file a notice of appeal if: (1) a party so moves
no later than 30 days after the time prescribed by Rule 4(a) expires; and (2) regardless of whether
its motion is filed before or during the 30 days after the time prescribed by Rule 4(a) expires, that
party shows excusable neglect or good cause.7 The extension may not exceed 30 days after the
prescribed time or 14 days after the date when the order granting the motion is entered,
whichever is later.8
This motion, which was filed on August 3, 2017, was timely, so the Court must
determine whether Defendant meets the second requirement of showing excusable neglect or
good cause to extend the time for filing a notice of appeal. There has been no showing of
excusable neglect for the extension.9 Although not articulated, the Court construes Defendant’s

5

Fed. R. App. P. 4(a)(4)(A).

6

Defendant states in its motion that it intends to file a motion to reconsider under Rule 60 on the grounds
that certain representations made by Plaintiff, on which the Court relied in the attorneys’ fee Order, were materially
incorrect. In order for the notice of appeal time to run from the order disposing of a Rule 60 motion, the motion
must be filed no later than 28 days after the judgment is entered. Fed. R. App. P. 4(a)(4)(A)(vi). The 28-day period
lapsed on August 2, 2017. Thus, any motion under Rule 60 would not change the 30-day period for filing the notice
of appeal.
7

Fed. R. App. P. 4(a)(5)(A).

8

Fed. R. App. P. 4(a)(5)(C).

9

Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004) (considering neglect justifying extension
based on: (i) the danger of prejudice to the non-movant; (ii) the length of the delay and its potential impact on
judicial proceedings; (iii) the reason for the delay, including whether it was in the reasonable control of the movant;
and (iv) whether the movant acted in good faith). The Tenth Circuit has found on several occasions that
professional obligations of movant’s counsel is not sufficient, as a matter of law, to show excusable neglect. United

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argument for good cause in seeking the extension because counsel is consumed with preparation
for and the conduct of expert depositions in the parallel Michigan litigation.10
The Tenth Circuit has described the concept of “good cause” as “tak[ing] account of a
narrow class of cases in which a traditional ‘excusable neglect’ analysis would be inapposite.”11
Good cause exists “in situations in which there is no fault—excusable or otherwise. In such
situations, the need for an extension is usually occasioned by something that is not within the
control of the movant.”12 Courts have addressed numerous examples of situations where the
need for extension was or was not out of control of the movant.13
Here, the Court first notes that Defendant waited until the end of the 30-day period to file
this motion, and it has done so at its own peril. Further, the Court is not convinced that counsel
taking depositions, which presumably have been scheduled for months, shows the need for an
extension based on something outside of Defendant’s control.14 The fact that Defendant’s
counsel is engaged in other professional obligations pertaining to the Michigan litigation does
not show that the deadline cannot be met despite Defendant’s diligent efforts. There is no
States v. Mitchell, 464 F.3d 1149, 1152 (10th Cir. 2006), rev'd on other grounds, 551 U.S. 1129 (2007); Utah
Republican Party v. Herbert, 678 F. App’x 697, 701 (10th Cir. 2017).
10

Cequent Performance Prods., Inc. v. Hopkins Mfg. Corp., No. 13-CV-15293 (E.D. Mich.).

11

Rochelle v. CVS Caremark, No. 14-2473, 2015 WL 5568294, at *2 (D. Kan. Sept. 22, 2015) (quoting
Bishop, 371 F.3d at 1207; Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 630 (1st Cir. 2000)).
12

Id. (quoting Bishop, 371 F.3d at 1207; Fed. R. App. P. 4(a)(5) advisory committee’s note to 2002
amendment).
13

Compare Thomas v. Butts, 745 F.3d 309, 311–12 (7th Cir. 2014) (explaining district court granted
extension of time to file notice of appeal because plaintiff had problems with the mail and lacked access to the law
library thereby showing good cause or excusable neglect); Rochelle, 2015 WL 5568294, at *2 (finding good cause
because the plaintiff, proceeding pro se, lost access to a computer, internet, and mailbox and did not receive an order
from the court) with Magraff v. Lowes HIW, Inc., 217 F. App’x 759, 761 (10th Cir. 2007) (failing to find good cause
where attorney deliberately waited until the end of the 30-day period to file notice of appeal, fell ill on the day the
notice of appeal needed to be filed, had not been ill during the entire period during which the appeal could have been
filed, the notice of appeal was a simple document to prepare, and he did not seek the assistance of other attorneys to
complete the filing).
14

The Court also notes that Defendant failed to provide any supporting documentation regarding the
depositions (i.e. notice of depositions). The Court does not know when such depositions are being conduct and how
many depositions are being conducted.

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evidence in the record that Defendant’s counsel has made any effort to seek the assistance of
other attorneys in their office, or even a secretary, to file the notice of appeal. The notice of
appeal is a simple document that is filed electronically. Defendant has made little attempt to
meet the standard for good cause, so the motion for extension of time to file a notice of appeal
must be denied.
IT IS THEREFORE ORDERED BY THE COURT that Motion for Extension of Time
to File a Notice of Appeal (Doc. 53) is denied.
IT IS SO ORDERED.
Dated: August 4, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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