Henderson v. Engstrom et al

Filing 92

Opinion and ORDER denying 90 Motion to Extend time to file Notice of Appeal. Signed by U. S. District Judge Roberto A. Lange on 12/13/12. (SLW)

FILED
DEC 132012
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

MARSHALL W. HENDERSON,
Plaintiff,
vs.
DR. ROYCE ENGSTROM,
DR. JAMES S. KORCUSKA,
DR. FRANK MAIN,
DR. GRACE A. MIMS,
DR. KAREN OLMSTEAD,
DR. SETH OLSON,
DR. TAD PERRY,
LINDA REETZ,
DR. TERISA REMELIUS,
and THE SCHOOL OF EDUCATION
AT THE UNIVERSITY OF SOUTH
DAKOTA,
Defendants.

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CIV 1O-4116-RAL

OPINION AND ORDER
DENYING MOTION
TO EXTEND TIME TO FILE
NOTICE OF APPEAL

On September 12, 2012, this Court entered Judgment of Dismissal following and
consistent with an Opinion and Order Granting Defendants' Motion for Summary Judgment.
Doc. 85; Doc. 86. Plaintiff Marshall Henderson is proceeding pro se, so the Clerk of Court
mailed those documents to Henderson on Thursday, September 13, 2012. Henderson lives in
South Dakota, so he presumably would have received those materials on Friday, September 14,
2012, or Saturday, September 15, 2012. Henderson, on September 17, 2012, filed a letter dated
that same day with the Clerk of Court concerning the receipt of what he perceived to be a
settlement offer from Defendants. Doc. 87.
On October 17, 2012, Henderson filed a letter dated the same date requesting an
extension oftime to file a Notice ofAppeal under Rule 4(a)(5) ofthe Federal Rules ofAppellate
Procedure. Doc. 88. Henderson's letter was one sentence long and provided no explanation of

why he had not filed a notice of appeal or what justified the requested extension in the deadline
to file a notice of appeal. Doc. 88. This Court denied Henderson's request for an extension of
time to file a notice of appeal "without prejudice to refiling such a motion with a valid showing
of 'excusable neglect or good cause' for failing to timely file a notice of appeal" under Rule
4(a)(5)(A) of the Federal Rules of Appellate Procedure. Doc. 89.
On November 14,2012, approximately a month after the deadline to appeal had run,
Henderson filed another letter, this time requesting an extension of 90 days to file a notice of
appeal. Doc. 90. Unlike his first letter which provided no explanation at all, Henderson's second
letter provided in essence two rationales: (1) "I have discovered information that I feel is very
important to this court case [and want an extension to appeal] to research this information
further;" and (2) "[ d]uring the course of this year I have experienced a great increase in
responsibilities and financial loss. " Doc. 90. Henderson elaborates somewhat on this second
excuse by explaining enhanced responsibiliti es in his work and changes in his personal life. Doc.
90.
Rule 4(a)(I)(A) of the Federal Rules of Appellate Procedure allows a party in a case of
this nature "30 days after entry of the judgment" to file a notice of appeal. Rule 4(a)(5)(A)
allows this Court to extend the time for filing 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 ofwhether 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 good cause.

Fed. R. App. P. 4(a)(5)(A).

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The 2002 Committee Note to Rule 4(a)(5) differentiates between lIexcusable neglect" and
"good cause" as follows:
The good cause and excusable neglect standards have
"different domains. II Lorenzen v. Employees Retirement Plan, 896 F .2d
228, 232 (7th Cir. 1990). They are not interchangeable, and one is not
inclusive of the other. The excusable neglect standard applies in
situations in which there is fault; in such situations, the need for an
extension 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.
Thus, the good cause standard can apply to motions brought
during the 30 days following the expiration of the original deadline. If,
for example, the Postal Service fails to deliver a notice of appeal, a
movant might have good cause to seek a post-expiration extension. It
may be unfair to make such a movant prove that its "neglect" was
excusable, given that the movant may not have been neglectful at all.
Similarly, the excusable neglect standard can apply to motions brought
prior to the expiration of the original deadline. For example, a movant
may bring a pre-expiration motion for an extension of time when an
error committed by the movant makes it unlikely that the movant will
be able to meet the original deadline.
Henderson's explanations do not establish "good cause" because Henderson's excuses do
not describe a situation for which there is no fault whatsoever-such as mail not arriving.
Rather, Henderson's reasons for an extension are more akin to claimed "excusable neglect"
Federal courts generally follow a four-factor test for determining whether lIexcusable
neglect" justifies extending the time to appeal under Rule 4(a)(5)(A)(ii). See 16A Charles Allen
Wright et aI., Federal Practice and Procedure § 3950.3 (4th ed. 2008). Those four factors, taken
from the case of Pioneer Inv. Services. Co. v. Brunswick Associates Limited Partnership, et aI.,
507 U.S. 380 (1993), are: "[1] the danger of prejudice to the [nonmovant], [2] the length ofthe
delay and its potential impact on judicial proceedings, [3] the reason for the delay, including

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whether it was within the reasonable control of the movant, and [4] whether the movant acted
in good faith." Id. at 395; see also Sugarbakerv. SSM Health Care, 187 F.3d 853,856 (8th Cir.
1999) (noting that the four factors from Pioneer are particularly important). The third Pioneer
factor-the reason for the delay-is the most important. Gibbons v. United States, 317 F .3d 852,
854 (8th Cir. 2003). Indeed, the reason for the delay must be "excusable neglect" to be within
Rule 4(a)(5)(A)(ii) at all, unless it separately constitutes "good cause."
Here, as is commonly the case, the first two factors and the final factor do not disfavor
granting an extension. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2nd Cir.
2003) (noting that in a typical case, the first two Pioneer factors will favor the movant and the
final factor is often not at issue). There appears to be no danger of prejudice to the Defendants
from a delay in an appeal and the length of the delay is not such that it has much potential for
adverse impact on judicial proceedings. This Court likewise does not find that Henderson has
acted in bath faith. The third factor-the reason for the delay, including whether it was within
the control ofthe movant-prompts this Court to deny Henderson's motion. Henderson, in short,
wants an extension in the time to appeal not due to what conventionally would be considered
"excusable neglect," but because he is very busy with other matters in his life and wants
additional time to do research. Such reasons do not fit with cases where "excusable neglect" has
been held to exist. See, e.g. Active Glass Corp. v. Architectural & Ornamental Iron Workers
Local Union 580, 899 F.Supp. 1228, 1231 (S.D.N.Y. 1995) (finding excusable neglect when
attorney was diagnosed with cancer and underwent treatment before talking with client about
appealing); Gilda Indust., Inc. v. United States, 511 F.3d 1348,1350,1352 (Fed. Cir. 2008)
(noting that problems with counsel navigating electronic filing system resulted in notice being

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filed one day late may justify finding excusable neglect); Weekley v. Jones, 927 F.2d 382,386
(8th Cir. 1991) (granting pro se litigant in prison suffering from borderline mental retardation
and paranoid schizophrenia extension based on excusable neglect).

Indeed, Henderson's

explanation for an extension strikes this Court as inferior to the explanation that the Eighth
Circuit found to be insufficient to justify an extension in Gibbons. 317 F.3d at 854-55 (holding
counsel's vacation without arrangements for management ofcases and her illness do not justify
an extension in the deadline to appeal). While Henderson is proceeding pro se, and pro se
litigants deserves some "special consideration," there is no evidence of excusable neglect in the
record. Weekley, 927 F.3d at 386.
To grant an extension to Henderson under these circumstances, this Court would have
to disregard the actual language of Rule 4(a)(5)(A)(ii). Henderson's letter, which this Court
accepts as a motion under Rule 4(a)( 5)(A), does not satisfy the requirement in Rule 4(a)(5)(A)(ii)
to show "excusable neglect or good cause." Therefore, it is hereby
ORDERED that Henderson's motion to extend time to file notice of appeal, Doc. 90, is
denied.
Dated December

13~ 2012.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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