New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services et al
Filing
873
MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez; IT IS THEREFORE ORDERED that Defendants' Motion for Extension of Time to File Notice of Cross- Appeal 860 is GRANTED, as follows: Defendants are permitted to file a notice of cross-appeal no later than five (5) days after entry of this Memorandum Opinion and Order. (mjr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
NEW MEXICO ONCOLOGY AND
HEMATOLOGY CONSULTANTS, LTD.,
Plaintiff,
v.
Civ. No. 12-00526 MV/GBW
PRESBYTERIAN HEALTHCARE SERVICES,
PRESBYTERIAN NETWORK, INC.,
PRESBYTERIAN INSURANCE COMPANY, INC.,
and PRESBYTERIAN HEALTH PLAN, INC.
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendants’ Amended Motion for Extension
of Time to File Notice of Cross-Appeal [Doc. 870]. The Court, having considered the motion,
briefs, and relevant law, and being otherwise fully informed, finds that Defendants’ Motion is
well-taken and will be granted.
BACKGROUND
On November 14, 2019, the Court entered a Memorandum Opinion and Order granting
Defendants’ Motion for Summary Judgment, Doc. 624, as follows: (1) dismissing with
prejudice Plaintiff’s federal and state antitrust claims, set forth in Counts I, III, IV, and VI of the
Third Amended Complaint; and (2) dismissing without prejudice Plaintiff’s pendent state law
claims for tortious interference with contractual relations and unfair competition, set forth in
Counts VII, VIII, and X of the Third Amended Complaint. Doc. 848. At the same time, the
Court entered a Judgment dismissing this action, reflecting the dismissal with prejudice of the
antitrust claims and the dismissal without prejudice of the pendent state law claims. Doc. 849.
On December 12, 2019, Plaintiff filed a Notice of Appeal. Doc. 851. The Notice of
Appeal indicates that Plaintiff “appeals to the Tenth Circuit Court of Appeals from the Final
Judgment filed November 14, 2019 [Doc. No. 849] and from the Memorandum Opinion and
Order filed November 14, 2019 [Doc. No. 848].” Id. The following day, on December 13,
2019, Plaintiffs commenced an action in New Mexico state court (the “State Court Action”)
against two of the Defendants herein, Presbyterian Healthcare Services (“PHS”) and Presbyterian
Health Plan (“PHP”), setting forth the two causes of action – common law unfair competition
and tortious interference with existing and prospective economic advantage – that this Court had
dismissed without prejudice. Doc. 862-3.
On December 27, 2019, Plaintiff filed its Docketing Statement with the Tenth Circuit.
Doc. 862-2. The Docketing Statement indicates that “Plaintiffs are not appealing from the
district court’s remand of the remaining state law claims to state court.” Id. at 7. On January
13, 2020, 18 days after their time for filing a notice of cross-appeal had elapsed, Defendants filed
their motion seeking an extension of time to file a notice of “conditional” cross-appeal. Doc.
860. On February 26, 2020, Defendants filed an amended version of their motion. Doc. 870.
Specifically, Defendants seek to appeal the Court’s dismissal of Plaintiff’s state law claims “in
the unlikely event that the Court’s judgment on the antitrust claims is reversed.” Doc. 870 at 3.
On January 28, 2020, Defendants filed a motion to dismiss or stay the State Court Action
pending resolution of the appeal before the Tenth Circuit in the instant matter. Doc. 866-2.
2
DISCUSSION
Because Plaintiff filed its Notice of Appeal on December 12, 2019, Defendants’ deadline
for filing a notice of cross-appeal was December 26, 2019. Fed. R. App. P. 4(a)(3) (setting 14day deadline for filing notice of cross-appeal). Defendants did not file their notice by that date,
and on the instant motion, ask this Court to exercise its discretion under 28 U.S.C. § 2107(c) and
Rule 4(a)(5) of the Federal Rules of Appellate Procedure to grant them an extension of time to
file a notice of a “conditional” cross-appeal. As stated above, Defendants seek to appeal the
Court’s dismissal of Plaintiff’s state law claims if and only if the Tenth Circuit reverses this
Court’s dismissal with prejudice of Plaintiffs’ antitrust claims. Defendants note that such an
appeal is “conditional in the sense that affirmance of the Court’s summary judgment would moot
it.” Doc. 870 at 4.
Section 2107 provides that “[t]he district court may, upon motion filed not later than 30
days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal
upon a showing of excusable neglect or good cause.” 28 U.S.C.A. § 2107(c). Similarly, Rule
4(a)(5) provides that “[t]he district court may extend the time to file a notice of appeal if . . . a
party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and . . .
that party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(i). In order to
determine whether a party has shown “excusable neglect” for its failure to file a notice of appeal
within the prescribed time period, the Court applies the analysis set forth in Pioneer Inv. Servs.
Co. v. Brunswich Assocs. Ltd. P’ship, 507 U.S. 380 (1993). City of Chanute, Kan. v. Williams
Natural Gas Co., 31 F.3d 1041, 1046.
3
In Pioneer, the Supreme Court explained that “[a]lthough inadvertence, ignorance of the
rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect, . . .
‘excusable neglect under Rule [4(a)] is a somewhat ‘elastic concept’ and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.” 507 U.S. at 392. Thus,
courts “are permitted, where appropriate, to accept late filings caused by inadvertence, mistake,
or carelessness, as well as by intervening circumstances beyond the party’s control.” Id. at 388.
The determination of “what sorts of neglect will be considered ‘excusable,’ . . . is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s omission.”
Id. at 395. “The Court specifically pointed to four factors relevant to this calculation: ‘the
danger of prejudice to [the nonmoving party], the length of delay and its potential impact on the
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.’” City of Chanute, 31 F.3d
at 1046 (quoting Pioneer, 507 U.S. at 395). “[F]ault in the delay remains a very important
factor – perhaps the most important single factor – in determining whether neglect is excusable.”
City of Chanute, 31 F.3d at 1046. Further, “counsel’s misinterpretation of a readily accessible,
unambiguous rule cannot be grounds for relief.” United States v. Vogl, 374 F.3d 976, 981 (10th
Cir. 2004) (citation omitted).
Taking into account all the relevant circumstances and, in particular, the Pioneer factors,
the Court finds that Defendants have made a sufficient showing of excusable neglect for this
Court to extend their time to file a notice of cross-appeal. Defendants filed their motion only 18
days after the end of the period prescribed for notice of cross-appeal, which is “a very short time
in the context of a protracted litigation battle.” City of Chanute, 31 F.3d at 1047 (finding district
4
court acted within its discretion where amended notice of appeal was filed 31 days late). It
appears undisputed that this short delay will have, if anything, a de minimis impact on the instant
judicial proceedings. Further, Plaintiff has not argued, and the record does not reflect, that
Defendants acted in anything but good faith. Thus, factors two and four weigh in favor of
finding excusable neglect.
Defendants explain that they did not file their notice of cross-appeal before the December
26, 2019 deadline because it was not until December 27, 2019 that Plaintiff made clear its
intention not to appeal this Court’s dismissal of its state court claims. Specifically, the Notice of
Appeal filed by Plaintiff on December 12, 2019 indicates that Plaintiff “appeals to the Tenth
Circuit Court of Appeals from the Final Judgment filed November 14, 2019 [Doc. No. 849] and
from the Memorandum Opinion and Order filed November 14, 2019 [Doc. No. 848].” Doc.
851. Under Rule 3(c), a notice of appeal must “designate the judgment, order, or part thereof
being appealed.” Fed. App. P. R. 3(c)(1)(B) (emphasis added). Given this rule, because
Plaintiff’s Notice did not indicate that Plaintiff was appealing only from that part of the
Judgment dismissing Plaintiff’s antitrust claims, it was reasonable for Defendants to understand
the Notice to reflect Plaintiff’s intention to appeal from the entirety of the Judgment, including
the dismissal of Plaintiff’s state law claims. Plaintiff filed its Docketing Statement on
December 27, 2019, one day after Defendant’s notice of cross-appeal, if any, was due. And in
its Docketing Statement, for the first time in the instant proceedings, Plaintiff made clear that it
was “not appealing from the district court’s remand of the remaining state law claims to state
court.” Doc. 862-2.
5
Plaintiff argues that once it commenced the State Court Action on December 23, 2019, it
was not reasonable for Defendants to believe that Plaintiff intended to appeal the dismissal of its
state law claims. Doc. 862 at 7. Further, Plaintiff argues that “[a]t any time prior” to the filing
of its Docketing Statement, “Defendants could have sought to confirm their assumption that
Plaintiff did not intend to pursue its state law claims,” and thus the reason for Defendant’s delay
in filing its notice “was entirely within the control of Defendants to resolve.” Id. The Court
cannot agree.
As Defendants argue, they had no duty to intuit Plaintiff’s intentions regarding its appeal
in this case based on its commencement of the State Court Action, or to inquire as to those
intentions –parties to a lawsuit are neither required nor reasonably expected to ask their
adversaries to divulge their litigation strategies. Further, it was reasonable for Defendants to
assume that Plaintiff took “a belt-and-suspenders approach [by] filing a state-court action to
preserve its rights in the event that its Tenth Circuit appeal failed.” Doc. 871 at 5. Indeed, it
was not until Plaintiff filed its Docketing Statement that Defendants even had grounds to file a
cross-appeal, as before that point, the record in this action reflected that Plaintiffs were appealing
from the entirety of “the Final Judgment,” not merely from a portion thereof. Thus, the third
and “perhaps the most important single factor” – fault in delay – weighs in favor of finding
excusable neglect. City of Chanute, 31 F.3d at 1046.
With regard to the danger of prejudice to Plaintiff, Plaintiff argues that Defendants will
use their cross-appeal “to seek a stay of the state court claims,” which will delay “Plaintiff’s
prosecution of its state law claims,” with the possible result of “loss of witness testimony and the
inevitable erosion of memory.” Doc. 862 at 12. But Defendants are entitled to move for a stay
6
of the State Court action regardless of whether they are granted leave to file a cross-appeal in this
action. In fact, Defendants have already done so. Doc. 871-2.
In their motion to dismiss or stay the State Court Action, Defendants argue that
“prosecution of identical claims” in both state and federal court “would waste the parties’
resources and the Court’s,” and thus “under the doctrine of priority jurisdiction” the State Court
should dismiss or stay the action before it. Id. at 1. Defendants base this argument on the
proposition that “[r]eversal of the summary judgment awarded to PHS and PHP in the federal
lawsuit could result in reinstatement of these same claims on remand.” Id. This underlying
proposition is true regardless of whether Defendants are permitted to file a cross-appeal.
Plaintiff has pointed to no authority to suggest that the Tenth Circuit, in the absence of a crossappeal from Defendants, would refrain from remanding Plaintiff’s state law claims in the event it
reverses this Court’s dismissal of Plaintiff’s antitrust claims. Indeed, the Tenth Circuit as a
matter of course reinstates pendant state claims when reversing a district court’s determination of
federal claims on the merits. See, e.g., Anaya v. Crossroads Managed Care Sys., 195 F.3d 584,
590 n.1 (10th Cir. 1999) (“Because we reverse and remand the section 1983 claims, we reinstate
those pendant state claims for concurrent resolution by the district court.”).
Admittedly, as Defendants acknowledge, “a pending conditional cross-appeal seeking to
reinstate [Plaintiff’s state law claims] in this Court in the event of a reversal of the Court’s award
of summary judgment on the antitrust claims would fortify the state-court motion [to stay the
State Court Action].” Doc. 871 at 7. To the extent that allowing Defendants to file a late crossappeal would bolster Defendants’ motion to stay the State Court Action, and to the extent that
7
such a stay would result in the danger of prejudice Plaintiff, then the first Pioneer factor would
weigh against finding excusable neglect.
Prejudice to Plaintiff is merely one factor, however, and as stated above, the
determination of what sort of neglect should be considered excusable is an equitable one that
takes account of all the relevant circumstances. As detailed above, three of the four Pioneer
factors, including “the most important single factor” of fault, weigh in favor of finding excusable
neglect. Under these circumstances, it would not be equitable for the Court to deny Defendants’
request for an extension of time to file a cross-appeal.
CONCLUSION
The Court finds that Defendants have shown excusable neglect or good cause for their
failure to file a notice of cross-appeal before the prescribed deadline. Accordingly, pursuant to
28 U.S.C. § 2107(c) and Rule 4(a) of the Federal Rules of Appellate Procedure, the Court
exercises its discretion to extend the time for Defendants to file a notice of cross-appeal.
IT IS THEREFORE ORDERED that Defendants’ Motion for Extension of Time to
File Notice of Cross-Appeal [Doc. 860] is GRANTED, as follows: Defendants are permitted to
file a notice of cross-appeal no later than five (5) days after entry of this Memorandum Opinion
and Order.
DATED this 28th day of February, 2020.
__________________________________________
MARTHA VÁZQUEZ
United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?