Ward et al v. Branch Banking and Trust et al

Filing 102

MEMORANDUM. Signed by Judge Ellen L. Hollander on 8/25/2016. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

PHILLIP WARD, ET AL.,
Plaintiffs,
v.

Civil Action No.: ELH-13-1968

BRANCH BANKING & TRUST
COMPANY,
Defendant.
MEMORANDUM
This Memorandum addresses the motion for an extension of time to file a notice of
appeal, filed pursuant to Fed. R. App. P. 4(a)(5) by Phillip and Deirdre Ward, the selfrepresented plaintiffs.
I.

Factual Background

Plaintiffs filed suit in 2013 against defendants Branch Banking & Trust Company
(“BB&T”) and the Fisher Law Group, PLLC (“Fisher”). ECF 2.1 As amended (ECF 14), the
Complaint alleged five counts related to defendants’ attempt to foreclose on plaintiffs’ residence
in Glenn Dale, Maryland. Plaintiffs’ claims against Fisher were dismissed in June 2014, along
with four of the five counts alleged against BB&T. See ECF 28; ECF 29. Count II of the
Amended Complaint (ECF 14) remained, alleging that BB&T violated the Truth in Lending Act,
15 U.S.C. §§ 1601 et seq., by failing to disclose the sale or transfer of plaintiffs’ mortgage loan
within 30 days after BB&T acquired the loan. ECF 14 ¶¶ 30-31. By Memorandum Opinion
(ECF 92) and Order (ECF 93) dated May 17, 2016, I granted BB&T’s “Second Motion for
1

Plaintiffs filed suit in the Circuit Court for Prince George’s County; BB&T removed the
case to this Court. ECF 1.

Summary Judgment” (ECF 89) and directed the Clerk to close the case. The Memorandum and
Order were docketed on May 18, 2016. See Docket.
Thereafter, on July 18, 2016, the Wards filed a “Motion for Extension of Time to File a
Notice of Appeal” (ECF 94), along with a supporting memorandum (ECF 94-1) (collectively, the
“Motion”). Plaintiffs deposited their Motion in a night box in the Clerk’s Office in Greenbelt,
precisely thirty days after the deadline for noting an appeal. BB&T has filed an opposition to the
Motion. ECF 100. The Wards have replied. ECF 101.
Also on July 18, 2016, the Wards filed a “Notice of Appeal.” ECF 95. By letter of July
22, 2016, the United States Court of Appeals for the Fourth Circuit notified the Clerk of this
Court that the Fourth Circuit “will docket the appeal after the district court has ruled on the
motion for extension of time.” ECF 97.
In their Motion, the Wards aver that “they inadvertently failed to file a notice of appeal
within the required time period” and that this Court should grant them relief “based upon the
doctrine [of] excusable neglect.” ECF 94 at 1. The Wards concede that they received a copy of
my Memorandum Opinion (ECF 92) and Order (ECF 93) by U.S. Mail on May 20, 2016. ECF
94-1 at 1. Yet, according to the Wards, “during the same time period, in May of 2016, the Pro
Se Plaintiff was experiencing a traumatic event at work where the company it [sic] worked for
was unexpectedly notified that it was losing its government contract.” Id. at 2. As a result, the
Wards maintain, id.: “[T]he Pro Se Plaintiff with its [sic] co-workers were experiencing
significant emotional strain not knowing if they would still have income and be able to support
their families.” The Wards submit that it was within this context that they “quickly reviewed the

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federal rules for appealing the Court’s ruling” and “mistakenly thought that the 60[-]day period
applied to them rather than the 30[-]day time period.” Id.
BB&T does not contest the timelineness of the Wards’ Motion. But, BB&T asserts, ECF
100 at 4-5: “Plaintiffs’ ‘inadvertent’ or ‘mistaken’ understanding of the appeal period does not
support a finding of ‘excusable neglect,’ which is required under Fed. R. App. [P.] 4(a)(5) to
extend the appeal period.”
In their Reply (ECF 101), the Wards clarify that they were both experiencing workrelated problems. They state, id. at 2: “[T]he reason the matter was so all consuming and
traumatic for the Pro Se Plaintiffs is because each of the Pro Se Plaintiffs were in danger of
losing their livelihood[s] at the same time because they worked for the same company.”
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons
that follow, I shall deny the Motion.
II.

Discussion

A. Timeliness of the Motion
Timely filing of a notice of appeal is “mandatory and jurisdictional.” Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 203 (1988). Under Fed. R. App. P. 4(a)(1)(A), the notice of
appeal in a civil case generally “must be filed with the district clerk within 30 days after entry of
the judgment or order appealed from.” However, a notice of appeal may be filed within 60 days
after entry of the judgment or order if, inter alia, the United States or an agency is a party. Fed.
R. App. P. 4(a)(1)(B).
Fed. R. App. P. 4(a)(5) governs motions for extension of time in which to file an appeal.
It provides, id.:
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(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed
by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30
days after the time prescribed by this Rule 4(a) expires, that party
shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule
4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the
motion is filed after the expiration of the prescribed time, notice must be
given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the
prescribed time or 14 days after the date when the order granting the
motion is entered, whichever is later.
Fed. R. App. P. 26(a)(1) pertains to the calculation of the deadlines set forth in Fed. R.
App. P. 4. Rule 26(a)(1) provides, id.:
(a) Computing Time. The following rules apply in computing any time period
specified in these rules, in any local rule or court order, or in any statute that does
not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. When the period is stated in
days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays,
and legal holidays; and
(C) include the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run
until the end of the next day that is not a Saturday, Sunday, or legal
holiday.
Fed R. App. P. 26(a)(4) is also relevant. It provides (emphasis added):

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(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or
court order, the last day ends:
(A) for electronic filing in the district court, at midnight in the court’s time
zone;
(B) for electronic filing in the court of appeals, at midnight in the time
zone of the circuit clerk’s principal office;
(C) for filing under Rules 4(c)(1), 25(a)(2)(B), and 25(a)(2)(C)--and filing
by mail under Rule 13(b)[2]--at the latest time for the method chosen for
delivery to the post office, third-party commercial carrier, or prison
mailing system; and
(D) for filing by other means, when the clerk’s office is scheduled to close.
As noted, my Memorandum Opinion (ECF 92) and Order (ECF 93) of May 17, 2016,
were not docketed in CM/ECF until May 18, 2016.3 Accordingly, the Wards were required to
file their notice of appeal within 30 days from that date, i.e., on or before June 17, 2016. See
Fed. R. App. P. 4(a)(1)(A). And, pursuant to Fed. R. App. P. 4(a)(5), the deadline for filing a
motion for extension of time in which to file the appeal was July 18, 2016.

2

Fed. R. App. P. 4(c)(1) and 25(a)(2)(C) address filings by inmates. Fed. R. App. P.
25(a)(2)(B) concerns filing submissions through U.S. Mail or third-party commercial carriers.
Fed. R. App. P. 13(b) concerns permissive appeals from the tax court. These provisions do not
apply here.
3

Local Rule 102.5(a) provides:

The electronic filing by a judge or the Clerk of any order, decree,
judgment, proceeding, or other documents shall constitute entry of that document
on the docket maintained by the Clerk as well as notice to and service upon
registered parties in the case under the federal rules of procedure. Pursuant to
Fed. R. Civ. P. 79 and Fed. R. Crim. P. 55, documents filed under this method are
deemed to be the official court record maintained by the Clerk
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For the Wards, who filed a paper copy of their Motion with the Clerk of this Court, Fed.
R. App. P. 26(a)(4)(D) applies.

Accordingly, the Local Rules concerning the filing of

submissions are also relevant.
Local Rule 504.1 states: “The Clerk’s Office shall be open from 9:00 a.m. to 4:00 p.m.
on all days except Saturdays, Sundays, the legal holidays specified in Fed. R. Civ. P. 77(c), and
the day after Thanksgiving.” Local Rule 504.2 provides: “For the convenience of litigants and
counsel, an ‘after hours’ or ‘night’ box in which filings can be made outside of normal business
hours is located on the first floor of each courthouse. The hours during which each box is
accessible are posted on the Court’s website and at the entrance to each courthouse.” The
website for this Court provides, in relevant part:
The After Hours Box is intended as a convenience. It is not intended as an
alternative for filing papers during regular business hours. Filings may be placed
in the after hours box after 4:00 p.m. Monday through Friday (except holidays).
Filings placed in the box will be “date stamped” the day they are deposited. The
box in Baltimore will remain open until midnight. Because of security concerns,
the box in Greenbelt will be open only until 7:00 p.m. These hours may be
changed without notice because of security concerns.
Hours of Operation, United States District Court for the District of Maryland,
https://www.mdd.uscourts.gov/courtinfo/hours.asp (last visited Aug. 24, 2016).
The Wards deposited their Motion into the After Hours Box at the Clerk’s Office in
Greenbelt after the close of business on July 18, 2016. ECF 94. Specifically, the date and time
stamp on the Motion shows that the Wards deposited it in the night box of the United States
Bankruptcy Court for the District of Maryland in Greenbelt at 6:53 P.M. ECF 94 at 1. The
Motion also contains a date stamp for July 18, 2016, stating, id.: “At Greenbelt Clerk U.S.
District Court District of Maryland Night Deposit Box.”
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Accordingly, I conclude that the Wards timely filed their Motion seven minutes before
the night box at the Greenbelt Courthouse was scheduled to become unavailable for filing.
Compare Goode v. Winkler, 252 F.3d 242, 245 (2d Cir. 2001) (finding that the district court
abused its discretion in granting a motion for extension of time to file an appeal by a selfrepresented prisoner whose motion was dated two days after the expiration of the deadline to
seek an extension of time pursuant to Fed. R. App. P. 4(a)(5)); see also Walsh v. Nationstar
Mortgage, LLC, et al., No. 1:15-CV-00936, 2016 WL 3766306, at *2 (E.D. Va. July 7, 2016)
(citing Goode, 252 F.3d at 245-46).
B. Excusable Neglect
The decision whether or not to grant an extension of time based upon excusable neglect is
committed to the discretion of the district court. See Cent. Radio Co. Inc. v. City of Norfolk, Va.,
811 F.3d 625, 631 n.5 (4th Cir. 2016) (quoting Thompson, 76 F.3d at 532 n.2). Accord United
States v. Borromeo, 945 F.2d 750, 754 (4th Cir. 1991); 16A Wright & Miller, Federal Practice
and Procedure (2008 & 2016 Supp.) § 3950.3 at 308 (“Wright & Miller”) (“Whether to grant an
extension rests largely in the discretion of the district court.”). Although the Motion itself was
timely filed, plaintiffs have not established excusable neglect to justify an extension of the appeal
period.
As discussed, the Wards maintain that “the potential loss of long-term employment”
“created significant emotional stress that prevented them from functioning at full capacity and
ultimately led to an inadvertent miscalculation of the days to file a notice of appeal.” ECF 94-1
at 3. They contend that their circumstances amount to excusable neglect.

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In particular, plaintiffs rely on Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380 (1993), to support their contention that they have shown excusable neglect.
ECF 94-1 at 2-3.4 In Pioneer Inv. Servs. Co., 507 U.S. at 395, the Supreme Court identified a
number of potentially relevant circumstances, including “the danger of prejudice to the
[nonmoving 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.” The Fourth Circuit has said: “The most important of
the factors identified in Pioneer for determining whether neglect is excusable is the reason for
the failure to [timely] file.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th
Cir. 1996); accord Colony Apartments v. Abacus Project Mgmt., Inc., 197 F. App’x 217, 223
(4th Cir. 2006).

4

The Wards do not rely on good cause. “Good cause will be found where forces beyond
the control of the appellant prevented her from filing a timely notice of appeal.” Nicholson v.
City of Waren, 467 F.3d 525, 526 (6th Cir. 2006); see also Mirpuri v. ACT Mfg., Inc., 212 F.3d
624, 630 (1st Cir. 2000). Nevertheless, BB&T asserts, ECF 100 at 2 n.1:
Plaintiffs do not and cannot argue the “good cause” standard. It is wellestablished that the “good cause” standard is only applicable to motions for
extension of time filed within the initial thirty-day period following the entry of
judgment. Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 532 (4th
Cir. 1996). In that Plaintiffs filed their Motion sixty (60) days after the entry of
judgment, the “good cause” standard is inapplicable.
In Haynes v. Genuine Parts Co., No. 1:13CV615, 2015 WL 8484448, at *2 (M.D.N.C.
Dec. 9, 2015), the court observed that Thompson, 76 F.3d 530, has been superseded, in part, by
the 2002 amendments to Fed. R. App. P. 4(a)(5)(A)(ii). According to 16A Wright & Miller,
Federal Practice and Procedure (2008 & 2016 Supp.) § 3950.3 at 279 (emphasis added): “[T]he
2002 amendment to Rule 4(a)(5) has made clear that both the excusable-neglect and the goodcause alternatives are available regardless of whether the motion is made before or after the
expiration of the appeal deadline.”

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Excusable neglect “is not easily demonstrated, nor was it intended to be.” Thompson, 76
F.3d at 534. Indeed, “a district court should find excusable neglect only in the extraordinary
cases where injustice would otherwise result.” Id. (citation and quotation marks omitted)
(emphasis added in Thompson). “‘[A] mere concession of palpable oversight or administrative
failure generally has been held to fall short of the necessary showing’” for excusable neglect. Id.
(quoting In re O.P.M. Leasing Serv., Inc.,769 F.2d 911, 917 (2d Cir. 1985)).
“Although neglect no longer needs to be beyond a party’s control to be deemed
excusable, ‘inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect.’” Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th
Cir. 2000) (quoting Pioneer Inv. Servs. Co., 507 U.S. at 392). Moreover, “a ‘simple case of
miscalculation’ regarding deadlines is not a sufficient reason to extend time, United States v.
Alvarez–Martinez, 286 F.3d 470, 473 (7th Cir. 2002), and judges do not have ‘carte blanche’
authority to allow untimely appeals, United States v. Marbley, 81 F.3d 51, 52 (7th Cir. 1996).”
Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir. 2005).
In my view, the Wards have not demonstrated excusable neglect. I am mindful that
“[c]ourts should give weight to the fact that a litigant is pro se when determining whether neglect
is excusable.” 16A Wright & Miller § 3950.3 at 298. Yet, “mistakes by those who proceed
without counsel are not necessarily excusable.” Nicholson v. City of Warren, 467 F.3d 525, 527
(6th Cir. 2006) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)).
In Nicholson, 467 F.3d 525, the Sixth Circuit affirmed a district court’s denial of a
motion for an extension of time in which to file a notice of appeal. There, the plaintiff, who was
self-represented, brought suit against the city of Warren, Michigan, pursuant to the Americans
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with Disabilities Act, 42 U.S.C. §§ 12101 et seq. Id. at 526. Plaintiff alleged that “she had been
injured when her wheelchair was not properly secured in a transportation van provided by
defendant.” Id. The district court dismissed the complaint and denied plaintiff’s subsequent
motion for reconsideration. Id. Approximately six weeks later, plaintiff filed what the district
court construed, in part, as a motion for an extension of time in which to file an appeal. Id.
Plaintiff claimed that she had shown good cause because she was “under stress and had an
allergic reaction to medication which required emergency room treatment.” Id. at 526. She also
argued excusable neglect, explaining that “she was unsure whether she had thirty or sixty days to
appeal, because the defendant was a government entity, but not a federal government entity.” Id.
at 526-27.
The Sixth Circuit affirmed. As to good cause, it concluded, id. at 526: “The district court
properly noted that, while lengthy incapacitating illness might constitute good cause, Nicholson
gave no details of the duration of her medical treatment which would indicate that she had been
unable to file a notice of appeal within thirty days of the court’s order.” With respect to
excusable neglect, the Sixth Circuit said, id. at 527 (citing Pioneer Inv. Servs. Co., 507 U.S. at
392): “Ignorance of the rules or mistakes in construing the rules do not usually constitute
excusable neglect.”
The justification set forth by the Wards is less compelling than the rationale advanced by
the plaintiff in Nicholson, 467 F.3d 525. Here, for example, there are no contentions that the
Wards required urgent medical treatment during the period in which they might have noted an
appeal. Rather, the crux of the Wards’ argument is that, amid a period of personal financial
uncertainty and stress, they “quickly reviewed the federal rules for appealing the Court’s ruling”
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and “mistakenly thought that the 60 day period applied to them rather than the 30 day time
period.” ECF 94-1 at 2. In other words, the Wards simply made a mistake in determining the
deadline by which they had to note an appeal. See Nicholson, 467 F.3d at 526-27.
To be sure, even lawyers sometimes find that certain rules are confusing. But, Fed. R.
App. 4(a)(1)(A) and (B) are not in that category. It is patently obvious that neither the United
States nor any of its agencies or employees has ever been a party to this case, and so it is difficult
to understand how plaintiffs could have concluded that the extended appeal period under Rule
4(a)(1)(B) applied here. Moreover, the Wards obviously were aware of the fact that there are
time limitations as to the right to appeal. The Wards’ error in construing the deadline under the
rules, although regrettable, does not turn this case into an extraordinary one, in which injustice
would result without relief. See Thompson, 76 F.3d at 534.
In this regard, 16A Wright & Miller has explained, § 3950.3 at 291 (quoting Silivanch v.
Celebrity Cruises, Inc., 333 F.3d 355, 367-68 (2d Cir. 2003), cert. denied, 540 U.S. 1105
(2004)):
We operate in an environment *** in which substantial rights may be, and often
are, forfeited if they are not asserted within time limits established by law. Judges,
of course, make mistakes. We, like the district court, have considerable sympathy
for those who, through mistakes—counsel’s inadvertence or their own—lose
substantial rights in that way. *** But the legal system would groan under the
weight of a regimen of uncertainty in which time limitations were not rigorously
enforced—where every missed deadline was the occasion for the embarkation on
extensive trial and appellate litigation to determine the equities of enforcing the
bar.
III.

Conclusion

The Wards have failed to demonstrate excusable neglect. Accordingly, I will deny the
Motion (ECF 94). A separate Order follows, consistent with this Memorandum.

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Date: August 25, 2016

/s/
Ellen Lipton Hollander
United States District Judge

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