EVERINGHAM et al v. CONSOLIDATED RAIL CORPORATION et al

Filing 187

OPINION. Signed by Judge Robert B. Kugler on 11/23/2015. (TH, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
IN RE: PAULSBORO DERAILMENT
:
CASES
:
:
Bryan EVERINGHAM, et al.,
:
Ryan RAGONE, et al., &
:
Marlo JOHNSON,
:
:
Plaintiffs,
:
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v.
:
:
CONSOLIDATED RAIL
:
CORPORATION, et al.,
:
:
Defendants. :
___________________________________ :

Master Docket No. 13–0784 (RBK/KMW)

Civil No. 13–3350 (Doc. No. 167)
Civil No. 13–7410 (Doc. No. 138)
Civil No. 13–4569 (Doc. No. 148)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court upon the motions of Plaintiffs Bryan Everingham
(Civil No. 13–3350, Doc. No. 167), Ryan Ragone (Civil No. 13–7410, Doc. No. 138), and Marlo
Johnson (Civil No. 13–4569, Doc. No. 148) to extend the time to file their appeals pursuant to
Federal Rule of Appellate Procedure 4(a)(5)(A). For the following reasons, Plaintiffs’ Motions
are DENIED.
On August 18, 2015, this Court granted summary judgment to Defendants Consolidated
Rail Corporation, Norfolk Southern Railway Company, and CSX Transportation, Inc. and
entered judgment against Plaintiffs. In opposing summary judgment, Plaintiffs had relied on the
report of medical expert Dr. Robert Laumbach. See Aug. 18, 2015 Op. at 4. But after a Daubert
hearing on August 6, 2015, this Court granted Defendants’ motion to exclude Dr. Laumbach. See
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Aug. 6, 2015 Order. Plaintiffs waived oral argument, and Plaintiffs’ attorney did not appear at
the Daubert hearing. See Letter from Matthew Weng, Esq. to Judge Robert B. Kugler, July 31,
2015 (Civil No. 13–0784, Doc. No. 914); Minutes of Proceedings, Aug. 6, 2015 (Civil No. 13–
0784, Doc. No. 917). Without a medical expert, Plaintiffs could not raise a genuine issue of
material fact as to damages. See Aug. 18, 2015 Op. at 14.
Plaintiffs now seek to appeal the August 6, 2015 Order excluding Dr. Laumbach and the
August 18, 2015 Order entering judgment in favor of Defendants and against Plaintiffs. In a civil
case, notice of appeal generally must be filed “within thirty days after the entry of such
judgment, order, or decree.” 28 U.S.C. § 2107(a). See also Fed. R. App. P. 4(a)(1)(A). Plaintiffs
had until September 17, 2015 to file a timely notice of appeal in this case. They failed to do so.
Plaintiffs’ attorney scheduled settlement conferences with this Court on October 6, 2015.
According to Plaintiffs, “[t]here was some confusion regarding [summary judgment], as
Plaintiff’s [sic] attorney believed that summary judgment was only partial and only against
certain defendants.” Pls.’ Br. at 2. This Court showed Plaintiffs’ attorney the August 18, 2015
Order and Opinion at the settlement conference, and only at that time “did he discover that
summary judgment had been entered.” Id.
If a party moves to extend the time to file a notice of appeal “no later than 30 days after
the time prescribed in Rule 4(a) expires[,]” the Court may grant an extension upon that party’s
showing of “excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). Plaintiffs filed these
motions to extend the time to file appeals on October 6, 2015, within the time required by

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Federal Rule of Appellate Procedure 4(a)(5)(A). Plaintiffs rightfully concede that there was no
good cause for their delay.1 See generally Pls.’ Br.
The Court therefore must determine whether Plaintiffs have demonstrated excusable
neglect. To determine whether a party’s neglect is “excusable,” a court must “tak[e] account of
all relevant circumstances surrounding the party’s omission[]” and make an equitable
determination. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993). A court should grant an extension only in “limited and exceptional” circumstances
because of “[t]he interest in finality and desire to avoid needless delay that underlie our rules and
procedures[.]” Joseph, 651 F.3d at 355. A court must consider factors such as “the danger of
prejudice to the [non-moving party], the length of 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.” Pioneer Inv. Servs. Co., 507 U.S. at
395. This Court does not question Plaintiffs or Plaintiffs’ attorney’s good faith.
Plaintiffs filed these motions on October 6, 2015—19 days after the time prescribed by
Rule 4(a)(1)(A) expired. Because the movant is required to make a Rule 4(a)(5)(A) motion no
more than 30 days after the original time to appeal has lapsed, “the prejudice to the non-movant
will often be negligible” and “delay always will be minimal in actual if not relative terms[.]”
Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000). A delay of 19 days is not
insignificant, considering the requirements of Rule 4(a)(5)(A). It is unlikely, however, that this
delay poses any great danger of prejudice to Defendants. But “the absence of any harm” does not

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To show good cause, a movant must demonstrate that he could not control the reason for delay.
See Joseph v. Hess Oil Virgin Island Corp., 651 F.3d 348, 356 (3d Cir. 2011). In contrast, a
movant may show excusable neglect even if the movant was at fault and could control the reason
for delay. See id. at 355.
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mean “that the attorney’s mistake was excusable.” McCarty v. Astrue, 528 F.3d 541, 545 (7th
Cir. 2008).
Although “no one factor is dispositive[,]” Kanoff v. Better Life Renting Corp., 350 Fed.
Appx. 655, 657 (3d Cir. 2009), “the reason-for-delay factor will always be critical to the
inquiry.” Lowry, 211 F.3d at 463. A court may find excusable neglect if the movant’s omission is
the “result of things such as misrepresentations by judicial officers, lost mail, and plausible
misinterpretations of ambiguous rules.” McCarty, 528 F.3d at 544. Excusable delay is an “elastic
concept”; however, “inadvertence, ignorance of the rules, or mistakes construing the rules”
usually do not suffice. Pioneer Inv. Servs. Co., 507 U.S. at 392.
Plaintiffs’ reason for the delay is that “[t]here were several motions filed on several
different docket numbers,” and “[i]n the midst of these motions, responses, and decisions,
plaintiffs’ attorney simply failed to realize summary judgment had been granted and that the
clock on the timing of any appeals had started to run.” Pls.’ Br. at 4. Plaintiffs’ attorney
essentially failed to pay adequate attention to the docket or to carefully read this Court’s August
18, 2015 Order and Opinion. This neglect is inexcusable. See Two-Way Media LLC v. AT&T,
Inc., 782 F.3d 1311, 1315 (Fed. Cir. 2015) (“[I]t is the responsibility of every attorney to read the
substance of each order received from the court[.]”). To find otherwise “would only serve to
condone and encourage carelessness and inattention to practice before the federal courts.”
Graphic Commc’ns Int’l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 8
(1st Cir. 2001).
It is the duty of Plaintiffs’ attorney to monitor his cases and meet the deadlines set by this
Court’s scheduling orders and the federal rules. Counsel’s error was avoidable, and it was
“readily foreseeable” that counsel could miss an important deadline if he was not diligent. Cf.

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Consol. Freightways Corp. of Delaware v. Larson, 827 F.2d 916, 918–19 (3d Cir. 1987)
(“[I]nadvertent misdirection of a notice of appeal” is “neither readily foreseeable nor capable of
anticipation by counsel.”). Plaintiffs’ attorney admittedly received notice of this Court’s August
18, 2015 Order and Opinion, see Pls.’ Reply Br. at 1, which clearly granted summary judgment
for Defendants and against Plaintiffs Everingham, Ragone, and Johnson. Because “extensions of
the time to appeal are limited and exceptional,” Joseph, 651 F.3d at 355, and Plaintiffs have
failed to show good cause or excusable neglect, Plaintiffs’ Motions are DENIED.

Dated:

11/23/2015

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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