Apsley et al v. Boeing Company, The et al
Filing
558
MEMORANDUM AND ORDER denying 554 Motion for Leave to File Notice of Appeal Out of Time. Signed by District Judge Eric F. Melgren on 4/8/2015. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PERRY APSLEY, et al.,
)
)
Plaintiffs,
)
)
v.
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)
THE BOEING COMPANY, et al.,
)
)
Defendants.
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___________________________________ )
Case No.: 05-1368-EFM
MEMORANDUM AND ORDER
Defendants moved this Court to dismiss these age discrimination claims due to Plaintiffs’
failure to comply with a last-chance order compelling discovery. Concerned about Plaintiffs’
seemingly ongoing failure to adequately participate in this litigation, the Court scheduled a
hearing on the motion. Plaintiffs did not appear at the hearing (more on that later). Defendants
made a detailed, plaintiff-by-plaintiff presentation of discovery response failures, and on January
7, 2015, this Court dismissed all remaining claims. Plaintiffs appealed; but not timely. This
matter is now back before this Court upon Plaintiffs’ Motion For Leave to File Notice of Appeal
Out of Time (Doc. 554).
Plaintiffs1 filed their Notice of Appeal on February 9, 2015; which Defendants asserted
was a few days out of time2 and asked the Tenth Circuit Court of Appeals to dismiss. Plaintiffs
responded pleading excusable neglect:
1
In the Circuit Court of Appeals, Plaintiffs became Appellants, and Defendants became Appellees, but for
simplicity purposes they shall continue to be referred to by their status in this Court.
2
Defendants contend that 30 days from January 7, 2015, was February 6, 2015. That is uncontroverted (and
incontrovertible). February 6, 2015, was a Friday.
On Saturday, January 31, 2015, [Plaintiffs’] counsel received news of such a
personal, sensitive and debilitating nature that demanded immediate action such
that [Plaintiffs’] counsel, because of excusable neglect, was unable to file the
Notice of Appeal until February 9, 2014, one business/counting day after the
expiration of the purported last day to file said Notice.3
The Tenth Circuit directed that request be made to the district court, pursuant to Fed. R.
App. P. 4(a)(5), which permits the district court to extend the time to file a notice of appeal.
Plaintiffs accordingly filed such motion in this Court. Their memorandum in support of the
motion for leave to file out of time acknowledges that the appeal was untimely filed, and pleads
excusable neglect upon language virtually identical to that quoted above. As they did in the
Circuit Court, Plaintiffs stated a willingness “to provide to this Court an Affidavit and supporting
documentation for in camera review of the cause. . . because of the extreme personal nature of
the cause of the excusable neglect.”4 Presumably, the Court was expected to request the affidavit
and documentation, because none was provided to either this Court or to the Court of Appeals.
Defendants’ response challenges that this is a “naked assertion” of excusable neglect.5
Interestingly, their challenge is not made primarily on the basis that Plaintiffs have failed to carry
their burden of demonstrating excusable neglect by making “naked assertions” without any
demonstration of proof (“references provided upon request” really is not sufficient to carry one’s
burden in litigation). This would have been a compelling argument, if made.
Instead, Defendants proffer a fascinating alternate theory of what actually happened.
Rejecting Plaintiffs’ filed position (before this Court and the Circuit Court) that counsel’s
personal and debilitating news prevented a timely filing, Defendants assert that Plaintiffs filed on
the date they planned to file – February 9 – because Plaintiffs’ counsel misunderstood his filing
3
Appellants’ Response in Opposition to Motion to Dismiss, United States Court of Appeals for the Tenth Circuit,
Case No. 15-3026, Doc. 01019389411, at p. 2.
4
Doc. 554-1, p. 2.
5
Doc. 555, p. 1.
2
deadline. Defendants’ attachment to their Response6 demonstrates that, the day after Plaintiffs
filed their notice of appeal, Defendants’ counsel emailed Plaintiffs’ counsel to inform Plaintiffs
that Defendants believed the notice of appeal to be untimely, and that Defendants intended to
seek dismissal of the appeal. Defendants contacted Plaintiffs pursuant to Tenth Circuit rules to
determine their position on the planned motion. Plaintiffs responded (within five minutes
according to the email date and time stamps) that they would oppose the motion as their
calculation gave them until the 9th.
Now, if Plaintiffs made a miscalculation of dates, they certainly would not be the first
litigants to do so. And this Court, at least, would tend in normal circumstances to be persuadable
that a date missed by one day could be due to the excusable neglect of miscalculation.7 But the
Court is hampered from granting relief to Plaintiffs’ on those grounds for the simple reason that
Plaintiffs have not sought relief on those grounds.
The Court is further hampered from granting relief upon the grounds for which Plaintiffs
have sought relief because Plaintiffs have, as Defendants note, proffered nothing more than the
naked assertion of an intervening event. If Plaintiffs have support for their claim, surely the time
to have offered it would have been upon the filing of the motion seeking leave. Certainly it is
not the Court’s obligation to serve discovery requests upon a party seeking such relief, who has
suggested that it has relevant documents but has failed to offer them, even in an “under seal”
request for an in camera review.
6
Doc. 555.
Defendants’ brief speculates that the miscalculation was due to Plaintiffs adding three days to the filing period due
to Fed. R. Civ. P. 6(d) and Fed. R. App. P. 26(c). Doc. 555, p. 2, n.2. It appears that the Tenth Circuit made a
similar speculation. United States Court of Appeals for the Tenth Circuit, Case No. 15-3026, Doc. 01019384927
(attached to Doc. 556). It also seems likely to this Court, from experience it has had in other circumstances, that the
mistake could be as simple as confusing 30 days with one month, determining that one month from January 7 was
February 7, and since that date fell on a Saturday, giving themselves until the next business day, Monday, February
9. In any event, all of this is speculation. And it is all irrelevant to the inescapable fact that the filing was late.
7
3
The Court’s concerns about this request go beyond these difficulties, though. First, the
Court notes what the lawyers all know, but what the Plaintiffs themselves (who may be
interested enough to read this Order) may not know; and that is how very simple it is to file a
notice of appeal. That may be best illustrated by reference to the (untimely) notice of appeal
filed in this case. In its entirety, save for the case caption, signature block and certificate of
service, it reads: “PLEASE TAKE NOTICE that Notice is hereby given that Plaintiffs in the
above-named case, hereby appeal to the United States Court of Appeals for the Tenth Circuit
from an Order dismissing the action on the 7th day of January 2015. DATED: February 8,
2015.”8 That’s it. No lengthy legal argument, nor voluminous procedural compilation of
relevant documents, but something that cannot take more than five to ten minutes to prepare.
Given that, the Court is puzzled how an event purported to have happened on Saturday, January
31, could have prevented the preparation and filing (electronic filing, achievable from one’s
desk) of such a simple document six days later.9
On a more fundamental level, however, this Court must confess to both skepticism of
Plaintiffs’ counsel’s proffered (but unverified) reasons for “excusable neglect” and to frustration
with Plaintiffs and/or Plaintiffs’ counsel’s inattention to this case. To explain why, we must
return to October 22, 2014, when the Court held its hearing on Defendants’ motion to dismiss.
8
Doc. 549.
A possible explanation might be that Plaintiffs and their counsel took a long time, with careful deliberation
including all of the numerous remaining plaintiffs, in deciding whether or not to appeal. That, again, would be
speculation. And it is speculation that the Court is inclined to disbelieve. The press coverage of the Court’s
dismissal the day after such dismissal quoted this same Plaintiffs’ counsel as saying he planned to appeal the
decision to the Tenth Circuit Court of Appeals and ask the judge to reconsider; to do everything he could to get it
reversed. Wichita Eagle, January 8, 2015, p. 2C. If that story were accepted as accurate, it would indicate that a
decision to appeal had been made more than three weeks before the alleged debilitating event of January 31.
However, the Court is reluctant to put too much reliance upon a quote in a newspaper, which has not been
independently verified; and further recognizes that a statement to the press that one plans to appeal is not the same
thing as an actual, final decision between counsel and client to in fact appeal.
9
4
As noted, Plaintiffs failed to appear at that hearing. A little background regarding that failure to
appear is now in order.10
It should be noted that the hearing had been docketed for this date on October 10,
2014.11 Prior to setting the hearing for October 22, the Court emailed both counsel with
proposed dates. Defendants’ counsel indicated that two proposed dates would work for them.
Plaintiffs’ counsel responded that he was available October 22, late morning due to having to
travel from Kansas City (roughly three hours away). The Court then set the hearing for October
22, at 1:30 p.m. This date was only twelve days away and was set to accommodate Plaintiffs’
counsel’s request. Immediately following the setting of that hearing, the Court separately
emailed Plaintiffs’ counsel to draw his attention to an earlier notification from the Clerk’s office
that he was in default of maintaining his active status with the Court, and to inform him that he
would have to take care of that matter if he wished to participate in the hearing on behalf of his
clients.
Plaintiffs’ counsel sent the Court an email the day before the hearing, October 21, 2014,
but at 10:26 p.m. so that Court staff did not see it until the next morning. The email was sent as
a reply to the October 10 email notifying him of his inactive status. His email read, in full: “I
have not been advised if I have been reinstated to the case. I am desirous of continuing this
hearing to a later date. I have a pre surgery appointment for my son (tonsils). Please advise.”
Immediately upon seeing the email the next morning (the day of the hearing), Court staff
phoned counsel. When unable to reach him by phone, at 8:31 a.m. he was emailed, cautioning
him that waiting until 10:26 the night before the hearing to request a continuance might not be
well received, and inquiring whether he had checked on his termination or reinstatement status
10
The events about to be related are drawn from the Court’s email and phone conversations. It should be noted that
the Court discussed many of these matters on the record at the commencement of that hearing.
11
Doc. 543.
5
before the Court. In fact, his status had been returned to “Active” on October 10, the same day
the Court’s staff set the hearing and cautioned him about his status. His status on the electronic
docket of this case would have reflected “Active” thereafter, which he would have seen if at any
time after his renewal he would have logged in.
At 8:50 a.m., the Court again emailed counsel to inform him of the foregoing – that the
docket in this case reflected that his status was active – and to advise him that no motion for a
continuance had been filed, nor would one be likely granted at this late date absent an
extraordinary emergency. Counsel and Court staff spoke on the phone shortly thereafter. The
Court was informed that no motion for a continuance had in fact been filed, nor had counsel
conferred with opposing counsel regarding a continuance. Accordingly, he was advised by the
Court that the hearing would be conducted as scheduled, and that he should plan to appear. This
conversation happened within a time frame that would have allowed him to make the three-hour
trip from Kansas City. However, counsel indicated that he had learned the day before that his
son’s doctor for an upcoming tonsils surgery had a cancelation in his schedule that would permit
the doctor to see his son that morning on a pre-surgery appointment, and that he wanted to take
advantage of the schedule opening. As noted, he did not appear at the hearing.
This detail is recounted because counsel was quoted in the newspaper story the day after
dismissal12 addressing his non-appearance at the hearing by claiming that he had notified the
Court “weeks and days before the hearing – even the day of” that he could not attend because he
was dealing with the death of his grandmother who had raised him. This assertion, if accurately
quoted, is dramatically at odds with what he told this Court, and when he told it.
12
The Court has previously referenced this story, in footnote 9, as well as the Court’s reluctance to place too much
reliance on an unverified quote in the newspaper; but for reasons that become obvious the Court considers them
worth noting.
6
In the final analysis, the Court retains the impression that Plaintiffs (and, significantly,
their counsel), continue to have an “apparent lack of interest in pursuing this case.”13 This is
evidenced by the reasons stated in the Court’s original order of dismissal – the demonstrated
disinterest in complying with discovery sanctions that were accompanied by the warning that
failure to comply would result in dismissal. Of course, it is also evidenced by Plaintiffs’ nonappearance at the hearing, even though the Court scheduled it at a time Plaintiffs’ counsel
requested. The thin and varying reasons given for that non-appearance need not be further
discussed. It is further evidenced by counsel’s failure to count to “thirty” in calculating his time
for docketing a notice of appeal, and by failing to even take the initiative of submitting to the
Court, for an in camera review, his documentation of the personal, sensitive and debilitating
events that he claimed form the basis for his excusable neglect. Finally, for what it’s worth, it is
evidenced by the failure of Plaintiffs to file a reply to Defendants’ response to its motion for
leave. The Court waited the appropriate amount of time for such a reply to be filed, but the date
for filing a reply has also now passed.
Moreover, the Court has developed serious doubts about the candor and good faith of
counsel’s representations. It is skeptical that counsel was really worried about his reinstatement
status on October 22, 2014, the day of the hearing, as opposed to looking for an excuse freeing
him to take the sudden opening in the doctor’s schedule for his son’s non-emergency (tonsils)
surgery. It struggles with the varying and inconsistent reasons given for missing the October
hearing, and it struggles with the varying and inconsistent representations made about when and
how the Court was informed that counsel would not make the hearing. It is troubled with the
incompatible reasons given for missing the filing deadline; first to Defendants’ counsel when
contacted for a position on the contemplated motion to dismiss, and then to the Circuit Court and
13
Court’s Order of Dismissal, January 7, 2015, Doc. 545, p. 15 at n.14.
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this Court. In short, the Court has lost confidence in the reliability of anything Plaintiffs’ counsel
tells it.
This loss of confidence, coupled with a complete failure to give the Court anything other
than a “naked assertion” of its grounds for excusable neglect, compels the Court to determine
that Plaintiffs have not shown excusable neglect for failing to timely file their Notice of Appeal.
Plaintiffs’ motion is therefore denied.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Leave to File Notice of
Appeal Out of Time (Doc. 554) is DENIED.
IT IS SO ORDERED.
Dated this 8th day of April, 2015.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
8
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