KLEIN v. JUST ENERGY GROUP, INC. et al
MEMORANDUM OPINION re 161 MOTION for Extension of Time to File Notice of Appeal Under FRAP 4 filed by JEFFREY FRANK KLEIN, denying 161 Motion for Extension of Time to File filed by JEFFREY FRANK KLEIN for the reasons as more fully stated in the opinion. Signed by Chief Judge Joy Flowers Conti on 10/27/2017. (msp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY FRANK KLEIN,
JUST ENERGY GROUP, INC., et al.,
Civil Action No. 14-1050
CONTI, Chief District Judge
Presently before the court is a “Motion to Extend Time to File Notice of Appeal Under
FRAP 4,” (ECF No. 161), filed by Plaintiff Jeffrey Frank Klein (“Klein”). Upon consideration
of the motion, the oppositions filed by Defendant Collectcents, Inc. o/a Credit Bureau of Canada
Collections (“Collectcents”), (ECF No. 163), and Defendant Commerce Energy (“Commerce
Energy”), (ECF No. 164), and Federal Rule of Appellate Procedure 4, the motion will be denied.
I. FACTUAL BACKGROUND
On August 7, 2014, Klein instituted this action, originally proceeding pro se. Prior to
being represented by counsel, Klein filed numerous documents in this action, including a motion
for leave to proceed in forma pauperis, (ECF No. 1), his original complaint, (ECF No. 2), an
opposition to motion for extension, (ECF No. 5), an opposition to motion to dismiss, (ECF No.
19), his amended complaint, (ECF No. 24), a request for entry of default (ECF No. 26), a motion
to remove the case from the Alternative Dispute Resolution (“ADR”) Program of the United
States District Court for the Western District of Pennsylvania (ECF No. 33), a motion to
bifurcate and expedite trial (ECF No. 34), and his consent to have counsel appointed for the
purpose of assisting him with the ADR process. (ECF No. 35). Subsequently, on November 16,
2015, attorney Adam Vahanian (“Klein’s counsel”) entered his appearance on behalf of Klein,
(ECF No 42), and represented him through final judgment. To date, Klein’s counsel has not
filed any motion to withdraw his representation. The present motion, however, indicates that
Klein is proceeding pro se.
Relevant to the present motion, on May 27, 2015, the court granted without prejudice the
partial motion to dismiss for failure to state a claim filed by Defendants Just Energy Ohio, LLC,
Just Energy Pennsylvania Corp., Just Energy Group, Inc., and Just Energy Limited (collectively
“Just Energy Defendants”) (ECF No. 22); on June 29, 2016, the court granted the Just Energy
Defendants’ motion for summary judgment, (ECF No. 87); at a hearing held on September 7,
2016, the court granted Defendant Data Exchange’s motion to dismiss for lack of personal
jurisdiction as consented to by Klein, denied in part and granted in part Klein’s motion for leave
to amend to file a third amended complaint, and denied leave to file a further complaint against
Defendant Just Energy Group, Inc., see (9/07/2016 Minute Entry); and on June 21, 2017, the
court granted the motions for summary judgment filed by Collectcents and Commerce Energy,
finally resolving this matter. (ECF No. 159).
During the pendency of this action, another district judge entered a sealed order in this
matter on March 29, 2017 (the “sanctions order”) (ECF No. 155), with respect to a joint motion
for sanctions filed by Collectcents and Commerce Energy against Klein alleging bad faith
conduct in mediation. On April 26, 2017, twenty-eight days after entry of the sanctions order,
Klein and his counsel filed a notice appealing the order and stating that it required Klein and
counsel to make equal payments to defendants. (ECF No. 156).
On July 25, 2017, thirty-four days after the court’s June 21, 2017 order finally disposing
of this action and four days beyond the thirty-day deadline for filing a notice of appeal Klein
filed his Notice of Appeal (also “notice”), indicating that he was proceeding pro se (ECF No.
160). The notice states:
Notice is hereby given that Jeffrey Frank Klein, Plaintiff in the abovenamed case, hereby appeals to the United States Court of Appeals for the Third
Circuit from the following Orders and rulings:
a May 27, 2015 Memorandum Opinion granting Partial Motion to Dismiss
for Failing to State a Claim1 entered in this action on the 27th day of May,
Rulings made at status conference held the 22nd day of September, 2015.
Memorandum Opinion granting Defendants’ motions for summary
judgment entered in this action on the 29th day of June, 2016.
Order on Motion for Summary Judgment entered in this action on the 21st
day of June, 2017.
(ECF No. 160 at 1-2).
By handwritten attachment to the notice, Klein acknowledged that he filed it four days
late. (ECF No. 160-1). He also indicated that: 1) he only learned on June 26, 2017, (twenty-five
days before the notice of appeal was due) from his counsel about the court’s rulings that are the
subject of the appeal in issue; 2) his counsel “did not turn over possession of [his] file until the
following week,” after counsel informed Klein about the order disposing of the case; 3) when
Klein reviewed his file and saw a copy of the court’s June 29, 2016 order granting summary
judgment, he misread the date as June 29, 2017, presumed it to be the most recent order in the
matter, and therefore, he believed he had until July 29, 2017 to file his notice of appeal; and 4)
the late notice would not be an unfair burden on any parties. (ECF No. 160-1 at 1).
The court notes that the order dismissing certain claims was without prejudice. (ECF No. 22).
The court observes with respect to the first three of the four items indicated on Klein’s
July 25, 2017 Notice of Appeal that: 1) Klein indicates that he appeals the May 27, 2015 and
June 29, 2017 memorandum opinions instead of the orders entered in accordance with those
opinions; 2) the May 27, 2015 order granting a partial motion to dismiss indicated that it was
granted without prejudice; and 3) what Klein lists as a status conference held and orders entered
on September 22, 2015, never occurred; there, however, was a status conference held and orders
entered on September 22, 2016. (ECF No. 159).
By correspondence dated August 3, 2017 to Klein from the Office of the Clerk of the
Court of Appeals for the Third Circuit, Klein specifically was advised that he had untimely filed
his notice of appeal, and was referred to Federal Rules of Appellate Procedure 4(a)(1) and
4(a)(5), with the indication that the district court had discretion to permit an extension of the time
to appeal as permitted in Rule 4.
(ECF No. 164-1 at 2).2
Nevertheless, Klein did not
immediately file his motion.
Twenty-eight days after Klein filed his Notice of Appeal and sixty-one days after the
court’s June 21, 2017 order, Klein, on August 22, 2017, and the very last possible day to do so,3
filed his motion to extend the time for filing the appeal. (ECF No. 161). In his motion, Klein
asserts the same reasons for his late notice that he stated in the handwritten note attached to the
notice, and adds that: 1) his Notice of Appeal really was only filed two days late because there
were two intervening weekend days falling between the deadline for filing the notice and the
date when he actually filed it; 2) any late filing of the present motion to excuse the late filing of
his Notice of Appeal also should be excused because the late notice had contained a handwritten
The August 3, 2017 correspondence from the court of appeals was not acknowledged by Klein in his motion, and it
instead was provided to this court by Commerce Energy as Exhibit A to its opposition to the motion.
August 20, 2017, fell on a Sunday, and therefore, Klein had until Monday, August 21, 2017 to file his present
motion. See Fed. R. Civ. P 6 (computing time), and Fed. R. App. P. 1(a)(2) (“When these rules provide for filing a
motion or other document in the district court, the procedure must comply with the practice of the district court.”).
attachment asserting essentially the same bases as he now indicates for the extension; and 3) the
court of appeals has already issued a briefing schedule regarding “the appeal,” all parties have
appeared and made initial filings in the appellate court, and therefore, no prejudice or hardship
will be occasioned on any of the parties by an extension of the deadline. (ECF No. 161 at 2-3).
II. STANDARD FOR EXTENDING THE DEADLINE TO APPEAL
Federal Rule of Appellate Procedure 4 provides:
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the
notice of appeal required by Rule 3 must be filed with the district clerk within 30
days after entry of the judgment or order appealed from.
(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
(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. 4 (emphasis added).
The requirement of filing the notice of appeal within thirty days is both mandatory and
jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam).
In accordance with Rule 4(a)(5)(A)(i) and (ii), the district court has the power where the
appellant shows good cause or excusable neglect to extend the time for filing a notice of appeal,
but only if the motion is filed no later than thirty days after the deadline for filing the notice of
appeal. The district court lacks jurisdiction to extend the deadline if the motion is filed beyond
the “grace period.” Melton v. Frank, 891 F.2d 1054, 1056 (2d Cir.1989). In addition to showing
good cause or excusable neglect in failing to timely file the notice of appeal, an appellant’s
“‘excusable neglect’ must be shown up to the actual time the motion to extend is filed.”
Pedereaux v. Doe, 767 F.2d 50, 51 (3d Cir. 1985). Thus, Klein also must show excusable
neglect with respect to his delay in filing the motion to extend on the last day of the grace period.
Good cause applies where the appellant is not at fault for the late filing because
the “good cause” prong is reserved for events over which the filing party has no
control. See Fed. R.App. P. 4 Advisory Committee Notes (“The excusable neglect
standard applies in situations in which there is fault.... The good cause standard
applies in situations in which there is no fault—excusable or otherwise.”).
Kanoff v. Better Life Renting Corp., 350 F.App'x 655, 657 n.1 (3d Cir. 2009). The standard for
extending the time for filing an appeal is strict and the extension of the time is reserved for the
extraordinary case to avoidance injustice. Consol. Freightways Corp. of Delaware v. Larson, 827
F.2d 916, 918 (3d Cir.1987).
Courts consider the following guiding factors to determine on a case-by-case basis if the
failure to file timely resulted from excusable neglect: (1) whether the failure reflects an
ignorance of the rules, and therefore, should not be excused; (2) whether it reflects an improper,
easily manufactured excuse that is difficult for a court to verify; (3) whether it results from a
readily foreseeable consequence that should have been planned for; (4) whether it reflects a
complete lack of diligence; and (5) whether there was substantial good faith efforts toward
compliance. Consol. Freightways, 827 F.2d at 919–20. The court also considers the length of
the delay and prejudice to the nonmovant. Id. at 920; see Price v. Gen. Cable Indus., Inc., 466 F.
Supp. 2d 610, 611 (W.D. Pa. 2006).
In Consolidated Freightways the court of appeals explained that to apply judiciously the
standard, a court must address the reasons underlying the inadvertence. 827 F. 2d at 919. “There
is a qualitative distinction between inadvertence which occurs despite  affirmative efforts to
comply and inadvertence which results from  lack of diligence.” Id. Excusable neglect is
found in situations such as where counsel exhibited substantial diligence and competence and
acted in good faith to conform conduct to a rule, but failed as a result of a minor neglect. Id.
(finding inadvertent misdirection of a notice of appeal timely sent constituted excusable neglect).
Federal Rule of Appellate Procedure Rule 4(a) affords the district court discretion only
on motion to grant Klein an extension of the time for filing his Notice of Appeal. Klein filed his
Motion to Extend Time to File Notice of Appeal Under Rule 4 on the very last day of the thirtyday grace period of Federal Rule of Appellate Procedure 4(a)(5)(A)(i), and therefore, the court
has jurisdiction to consider whether it will exercise its discretion to grant Klein’s extension
request. In order for the court to grant Klein’s request, the court must find that Klein met the
excusable neglect or good cause standard in Rule 4(a)(5)(A)(ii). The court finds that he did not.
Klein’s assertions do not establish either good cause or excusable neglect in the late filing
of the Notice of Appeal or in his delay in filing the necessary motion to extend the deadline. The
court finds the reasons offered by Klein, for the most part, demonstrably disingenuous.
Klein does not present factors beyond his control that caused the late filing, which
renders his motion without good cause. Klein’s excuse that his counsel delayed five days in
informing him about the Wednesday, June 21, 2017 order, and only notified him on the
following Monday, June 26, 2017, provides no justification. He still had an additional twentyfive days to file a notice of appeal. Yet, he waited an additional twenty-nine days to do so.
Klein’s second contention, that he did not obtain his litigation file from his counsel until a week
after June 26, 2017, also is inadequate. Even if receipt of his file was necessary for filing the
notice, he still had over two weeks from the time he received it to file a timely notice of appeal.
He did not point to any thwarted efforts or even attempts to obtain the documents he claims he
needed from the docket or court. Indeed, he adds in his motion that while he independently was
reviewing the docket entries on the court’s Public Access to Court Electronic Records
(“PACER”) system on July 25, 2017, it dawned on him that the order disposing of his case was
entered on June 21, 2017 and that his notice of appeal was late. Instead of revealing a
justification for his untimely filing, this demonstrates that he had access to the docket and some
ability to utilize it. These reasons reveal a lack of diligence rather than good faith efforts or
Klein’s third assertion, that he filed an untimely notice of appeal because he somehow
misread the date of the June 29, 2016 order to be instead a June 29, 2017 order, giving him until
July 29, 2017, to file the notice cannot reasonably be reconciled with his assertion in the very
same document that his counsel notified him on June 26, 2017 about the June 21, 2017 order
granting summary judgment and finally resolving the matter. Therefore, his assertion that he
thought then that he had thirty days from a June 29, 2017 order is the kind of excuse generally
not verifiable, but here lacks plausibility and is demonstrably false by his own statements.
With respect to prejudice, Klein offers only that the court of appeals has already entered a
briefing schedule. Review of the docket, as pointed out by defendants, however, reveals that this
schedule relates to his earlier appeal of the sanction order and not his presently attempted appeal
as he insinuates. Klein’s argument about the status of his prior appeal of the sanctions order in
the appellate court actually weighs against granting his motion. The prior filing of a notice of
appeal with respect to the sanctions order in this case demonstrates Klein’s knowledge of and
ability to comply with Rule 4’s timeliness requirements. See Maqagi v. Horizon Lamps, Inc.,
Civ. Act. No. 13-cv-1573, 2016 WL 7209941, at * 3 (E.D. PA Dec. 13, 2016).
Klein asserts in his motion, but does not make specific argument regarding it, that he is
now proceeding pro se, but no withdrawal of counsel has been filed in this action, and his
counsel entered an appearance on Klein’s behalf with respect to the earlier appeal of the
sanctions order. Even if Klein were unrepresented, the requirements of Rule 4 still apply and his
failure to file timely the appeal must be excused and adequately explained. In re Kaplan, 482
F.App’x. 704, 706-707 (3d Cir. 2012) (bankruptcy court did not abuse its discretion in denying
the motion to extend where it determined that the pro se debtor failed to monitor the docket). As
noted, Klein represented himself throughout a good deal of this litigation, making numerous pro
Recently in Alvarado v. D’llio, Civ. Act. No. 15-3878, 2017 WL 3080749 (July 19,
2017), the district court found excusable neglect and good cause to extend a pro se prisoner’s
deadline for filing an appeal, where he filed the appeal one day late because he misapprehended
the prison mail box rule believing that filing was complete on handing it to the prison officials
for filing as opposed to requiring him to hand the appeal to prison officials one day earlier.
Alvarado, 2017 WL 3080749, at *2. The court noted that the pro se prisoner had been extremely
diligent in notifying the clerk’s office after each transfer to a new prison location and wrote to
inquire regarding any decision made on a pending motion for reconsideration, but missed the
deadline for filing a notice of appeal by one day. Here, by contrast Klein’s excuses, to the extent
believable or even plausible, reveal a lack of diligence and repeated delays.
With respect to his separate delay in waiting until the very last day of the grace period to file
the present motion, the only basis Klein offers for waiting until the last day to file the motion is
that he previously had indicated some of the reasons for the late appeal in his handwritten note
attached to his notice. Klein does not attempt any showing of good cause or excusable neglect in
the significantly delayed filing of his present motion, which is required by Pedereaux. Klein
appears to assume that the note is good enough or equivalent to a timely motion. Quite simply,
this handwritten note is wholly insufficient, particularly in light of: 1) the strict requirements in
Rule 4 for extending the deadline by filing a motion with the district court; 2) that Klein’s
attachment acknowledges his own late filing but does not take the required step at that time to
attempt to excuse it; and 3) the very specific statements in the court of appeals’ August 3, 2017
letter directing Klein to Federal Rule of Appellate Procedure Rule 4 with respect to his untimely
Notice of Appeal.
In Pedereaux, appellant’s counsel had a medical emergency in his family just before the
notice of appeal was due and extending until four days after the deadline, but he awaited an
additional twelve days to file the notice of appeal. The district court determined that the
appellant failed to show excusable neglect for awaiting the additional period to file the motion
for extension and denied the motion. Writing for the Court of Appeals for the Third Circuit in
affirming, then Chief Judge Ruggero Aldisert explained that the district court had rightfully
interpreted Rule 4 to require the showing of excusable neglect in appellant’s awaiting the filing
of the motion to extend. In ruling Pedereaux’s delay was not excused, the court stated:
[t]his is a common sense, pragmatic interpretation of Rule 4(a)(5). It promotes
the salutary purpose of Rule 4(a) to ensure efficient and timely adjudication of
appeals. It simply is not overly burdensome to require a putative appellant, who
has already missed the . . . mandatory appeal date of Rule 4(a)(1) because of
“excusable neglect,” to file immediately a Rule 4(a)(5) motion to extend when the
excuse no longer exists.
767 F.2d at 52. Klein’s delay in filing the motion to extend is likewise not excused.
In accordance with the foregoing, the court will deny Klein’s motion to extend the time to
file a notice of appeal. An appropriate order will be entered.
October 27, 2017
By the court:
/s/ Joy Flowers Conti
Joy Flowers Conti
United States District Judge
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