Doe 150 v. Archdiocese of Portland In Oregon et al

Filing 88

AMENDED OPINION & ORDER: Granting Plaintiff's Motion for Extension of Time to File Notice of Appeal 72 . Plaintiff is directed to refile his notice of appeal, along with the appropriate filing fee. His notice of appeal will be deemed timely if filed within seven days of the date hereof. Signed on 12/7/10 by Magistrate Judge Paul Papak. (gm)

fl 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JOHN DOE 150, Plaintiff, CV 08-691-PK AMENDED OPINION AND ORDER

v.

ARCHDIOCESE OF PORTLAND IN OREGON, ROMAN CATHOLIC ARCHBISHOP OF PORTLAND IN OREGON, Defendants. PAPAK, Magistrate Judge: Fictitiously-named plaintiff John Doe 150 ("John") filed this action against defendants Archdiocese of Portland in Oregon (the "Archdiocese") and Roman Catholic Archbishop of Portland in Oregon (the "Archbishop") on June 6, 2008, alleging defendants' vicarious liability for sexual battety of a child and intentional infliction of emotional distress on a theory of

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respondeat superior, and direct liability for fraud and for negligence. I granted summary

judgment in defendants' favor on June 16,2010, and issued a final judgment dismissing John's claims with prejudice on June 18, 2010. John did not timely file a notice of appeal from the judgment against him. Now before the court is John's motion (#72) for retroactive extension of time to file a notice of appeal. In suppott of his motion, John argues that his failure to file a timely notice of appeal was caused by his counsel's excusable neglect. I have considered the motion and all of the pleadings on file. For the reasons set forth below, John's motion is granted.

LEGAL STANDARD
A patty's motion for extension of time for filing a notice of appeal is governed by Federal Appellate Procedure Rule 4(a)(5). Rule 4(a)(5) pelmits a district court to extend the time within which a patty must file a notice of appeal if the "patty so moves no later than 30 days after the time prescribed by this Rule 4(a) expires" and establishes either "excusable neglect or good cause." Fed. R. App. P. 4(a)(5)(A). The Ninth Circuit's en bane decision in Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) establishes that, in analyzing whether a patty's neglect was excusable for purposes of Rule 4(a), the COutts of the Ninth Circuit apply the excusable neglect standard set forth by the United States Supreme Court in the bankruptcy context in Pioneer Investment Services Co. v. Brunswick
Associated Ltd. Partnership, 507 U.S. 380 (1993). See Pincay, 389 F.3d at 855. The Pioneer

decision established that: [TJhe determination [of what sorts of neglect will be considered "excusable"] is at bottom an equitable one, taking account of all relevant circumstances sUl1'ounding the party's omission. These include ... the danger of prejudice to the [nonmoving

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party], the length ofthe delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control ofthe movant, and whether the movant acted in good faith.
Pioneer, 507 U.S. at 395. The Pioneer court further made clear that "[a]lthough inadvertence,

ignorance of the lUles, or mistakes construing the rules do not usually constitute 'excusable' neglect, it is clear that 'excusable neglect' ... is a somewhat 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Id. at 392 (footnotes omitted). In applying the Pioneer test, the Ninth Circuit - unlike "at least six" of its sister circuits, Pincay, 389 F.3d at 863 (Kozinski, dissenting) - has held that the factors set forth in Pioneer must be balanced against one another, that no single factor standing alone should be treated as having necessarily dispositive significance, and that there can be no rigid per se lUle under which any specific reason for a party's neglect may be treated as necessarily inexcusable.
See id. at 859-860.
MATERIAL FACTS

Judgment in defendants' favor issued June 18,2010. In connection with that final judgment, the comt sent two notifications to all parties in this action via email. The first such notification, sent at 9:32 a.m. on June 18,2010, stated in relevant patt as follows:
OPINION & ORDER: Defendants' Motion for Summaty Judgment [31] is Granted, and all claims in this action are Dismissed with prejudice. A final judgment w