PARIKH v. UPS et al
Filing
96
OPINION. Signed by Judge Dennis M. Cavanaugh on 4/3/12. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
:
HARRY PARIKH,
:
Hon. Dennis M. Cavanaugh
:
Plaintiff,
:
OPINION
:
v.
:
Civil Action No. 09-1652(DMC)(JAD)
:
UNITED PARCEL SERVICE, INC.,:
EDWARD FAGAN, JULIE FIELDS, and:
ANNETTE JOHNSON,
:
:
Defendants.
:
_________________________________
DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the Motion of Plaintiff Harry Parikh (“Plaintiff”) for
an Extension of Time to File an Appeal. ECF No. 92. Pursuant to FED. R. CIV. P. 78, no oral argument
was heard. After carefully considering the submissions of the parties, and based upon the following, it
is the finding of this Court that Plaintiff’s Motion is granted.
I.
BACKGROUND
This matter involves a dispute over the termination of an employee. Plaintiff is Harry Parikh
(“Plaintiff”), a former employee of United Parcel Service, Inc. (“UPS”). Plaintiff is representing himself
in this action. Defendants are UPS and Plaintiff’s former managers, Annette Johnson, Julie Fields, and
Ed Fagan (collectively, “Defendants”). In an Opinion and Order dated October 31, 2011, this Court
granted Defendants’ Motion for Summary Judgment. Plaintiff filed his Notice of Appeal with the Third
Circuit on December 12, 2011. ECF No. 89. As this Notice of Appeal was untimely, Plaintiff then filed
the present Motion for an Extension of Time to File an Appeal with this Court on December 28, 2011.
Defendants filed their Opposition on January 13, 2012. ECF No. 94. The matter is now before this
Court.
II.
STANDARD OF REVIEW
Rule 4(a)(1) of the Federal Rules of Appellate Procedure establishes the time limit for filing a
notice of appeal in a civil case: “the notice of appeal . . . must be filed with the district clerk within 30
days after the judgment or order appealed from is entered.” FED. R. APP. P. 4(a)(1). Further, FED. R. APP.
P. 4(a)(5) permits this Court to extend the time to file a notice of appeal if: (1) a party moves for said
extension no later than 30 days after the time prescribed under Rule 4(a) ends; and (2) regardless as to
time, whether the party shows excusable neglect or good cause. FED. R. APP. P. 4(a)(5)(A)(I); In re: Diet
Drugs Products Liab. Litig., 401 F.3d 143, 154 (3d Cir. 2005).
III.
DISCUSSION
The time for Plaintiff to timely file a Notice of Appeal ended on November 30, 2011. Pursuant
to FED. R. APP. P. 4(a)(5), Plaintiff then had an additional thirty days to file his Motion for an Extension
of Time to File an Appeal. Plaintiff filed said Motion on December 28, 2011, which was within the thirty
day allotment. Because Plaintiff satisfies the first prong of Rule 4(a), the Court must determine whether
he has also demonstrated excusable neglect.1
1
With the circumstances presented by Plaintiff, good cause is not applicable. See
Lorenzen v. Employees Ret. Plan, 896 F.2d 228, 232 (7th Cir. 1990) (“The excusable neglect
standard applies in situations in which there is fault; in such situations, the need for an extension
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The Third Circuit has held that excusable neglect under Rule 4(a) is to be reviewed using the test
outlined in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380 (1993). See In re
Diet Drugs Products Liab. Litig., 401 F.3d at 153. In Pioneer, the Supreme Court set forth the following
factors for consideration: (1) the danger of prejudice; (2) the length of delay and its potential impact on
judicial proceedings; (3) the reasons for delay (including whether it was within reasonable control of
movant); and (4) whether movant acted in good faith. The Court will review each in turn.
First, there appears to be little to no danger of prejudice to Defendants. Plaintiff filed the present
motion within time frame permitted under the rules. The Third Circuit has held that a minimal time delay
is not prejudicial. See In re Diet Drugs Products Liab. Litig., 401 F.3d at 154. Further, Defendants have
not argued that they would suffer any prejudice by allowing Plaintiff to file his notice of appeal outside
the normal time parameters. Therefore, this factor weighs in Plaintiff’s favor.
Second, as previously mentioned, the length of delay in the instant motion is minimal. That
minimal elapse of time does not reduce in any way Plaintiff’s interest in appeal. This factor thus also
weighs in Plaintiff’s favor.
Third, the Court finds that the reason for the delay factor is essentially neutral. In considering
Plaintiff’s arguments, the Court notes that he proceeds pro se in this matter. While “pro se litigants are
not excused from compliance with procedural rules,” Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758
(7th Cir. 2008), the Court remains mindful of how Plaintiff’s pro se status affects his prosecution of this
case. See, e.g., Gilmore v. Macy’s Retail Holdings, No. 06-3020, 2009 U.S. Dist. LEXIS 70691 at *6-7
is usually occasioned by something within the control of the movant. The good cause standard
applies 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.”).
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(Aug. 11, 2009) (considering pro se plaintiff’s confusion regarding appeal process in excusable neglect
analysis). In this matter, Plaintiff states that he was unable to access this Court’s Opinion and Order
granting summary judgment on the electronic filing system, that he never received a paper copy of the
same, and that he was misinformed as to the appeal process and incorrectly filed an appeal with the New
Jersey Supreme Court, Appellate Division on December 9, 2011. Additionally, Plaintiff argues that he
contacted Defendants’ counsel on November 21, 2011, regarding his inability to access the Opinion and
Order, but Defendants counsel did not assist him.
Defendants argue that Plaintiff did have a copy of this Court’s Opinion and Order before the
expiration of his time to appeal, as evidenced by certification of the New Jersey Superior Court, Appellate
Division, dated October 31, 2011, that Plaintiff submitted along with his Motion.
Defendants
additionally seize on their counsel’s November 21, 2011 telephone conversation with Plaintiff as
evidence that Plaintiff was in possession of this Court’s Opinion and Order. Defendants thus argue that
Plaintiff’s excuses for missing the deadline are contradicted by the record before this Court. When
viewing the circumstances of Plaintiff’s neglect as a whole, however, the Court finds that the reason for
the delay factor does not favor either party. Plaintiff’s actions plainly demonstrate to this Court a lack
of understanding of the appeals process. Although Plaintiff is not excused from compliance with these
rules, and this factor cannot weigh in Plaintiff’s favor simply because he is proceeding pro se, the Court
is not convinced that this factor should weigh in favor of Defendants, either.
Finally, the Court finds that Plaintiff’s actions demonstrate good faith. The record indicates that
Plaintiff made efforts to continue the prosecution of his case. Plaintiff’s telephone calls with Defendants’
counsel, and his improper filing of an appeal with the New Jersey Supreme Court, Appellate Division,
plainly indicate efforts to pursue his appeal. Also, as mentioned above, it appears from the record that
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Plaintiff attempted to follow his case on the Court’s electronic filing system, but may have had some
technical difficulties in doing so. The Court finds that these efforts demonstrate a good faith effort to
comply with the rules of the court.
In looking at all of the circumstances surrounding Plaintiff’s delay, this Court finds that Plaintiff
has demonstrated that the delay in filing his Notice of Appeal is excusable.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion is granted. An appropriate Order accompanies this
Opinion.
S/ Dennis M. Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Date:
Orig.:
cc:
April 3 , 2012
Clerk
All Counsel of Record
Hon. Joseph A. Dickson, U.S.M.J.
File
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