Joseph v. Hess Oil Virgin Islands Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-8026

___________

PIERRE P. JOSEPH

v.

HESS OIL VIRGIN ISLANDS CORP.,

Petitioner

___________________________________

On Writ of Certiorari from the

Supreme Court of the Virgin Islands

(S. Ct. Civ. No. 2009-00054)

____________________________________

Submitted on Petitioner’s Motion for an

Extension of Time

to File a Petition for a Writ of Certiorari

May 17, 2011

1

Before: SMITH, Circuit Judge*

(Opinion filed: July 5, 2011)

Lee J. Rohn, Esq.

Law Offices of Rohn & Carpenter

1101 King Street

Christiansted, St. Croix, VI 00820

Counsel for Respondent

Carl A. Beckstedt, III, Esq.

Sunshine S. Benoit, Esq.

Bryant, Barnes, Moss, Beckstedt, Blair, LLP

1134 King Street, 2nd Floor

P.O. Box 224589

Christiansted, St. Croix, VI 00822-4589

Peter Goldberger, Esq.

50 Rittenhouse Place

Ardmore, PA 19003-2276

Counsel for Petitioner

*

This Opinion was circulated to all active judges of this

Court prior to filing, in accordance with Third Circuit Internal

Operating Procedure Chapter 5.

2

___________

OPINION OF THE COURT

___________

SMITH, Circuit Judge.

Before the Court is an application by Hess Oil Virgin

Islands Corporation (“HOVIC”) for an extension of time to

file a petition for a writ of certiorari from a decision of the

Supreme Court of the Virgin Islands. Our rules provide that

an extension of the sixty-day period in which to file a

certiorari petition may be granted “for good cause shown.”

3d Cir. Local Appellate Rule (“LAR”) 112.4(a) (2010).

HOVIC seeks an additional thirty days to file its petition on

the ground that it recently retained counsel to represent it

before this Court, and counsel contends that he cannot meet

the current deadline, mainly due to other professional

commitments. For the reasons explained below, I conclude

that HOVIC’s grounds for seeking an extension of time do

not amount to “good cause.” However, because this court has

not previously addressed standards applicable to the showing

required under LAR 112.4(a), I will grant HOVIC’s request

for an extension of time.

I.

I need not recount the nature of the dispute between

HOVIC and the respondent, Pierre P. Joseph, for purposes of

addressing this extension request. Briefly stated, HOVIC

intends to file a certiorari petition from a decision of the

Supreme Court of the Virgin Islands entered March 8, 2011.

3

The Supreme Court reversed an order in which the Superior

Court of the Virgin Islands granted summary judgment in

HOVIC’s favor, and it remanded to the Superior Court for

further proceedings. According to HOVIC, the parties agreed

to settle the case shortly before the Supreme Court issued its

March 8 decision. HOVIC moved to recall the mandate or

for leave to file a petition for rehearing out of time, citing the

purported settlement. The Supreme Court denied both

requests. HOVIC maintains that the case became moot once

the parties agreed to settle, and it intends to seek certiorari to

argue, inter alia, that mootness deprived the Supreme Court of

jurisdiction to issue the March 8 decision.

A petitioner may seek review in this Court “of a final

decision of the Supreme Court of the Virgin Islands … by

filing a petition for a writ of certiorari … within 60 days from

the entry of judgment sought to be reviewed[.]” LAR

112.2(a) (emphasis added); see also Pichardo v. V.I. Comm’r

of Labor, 613 F.3d 87, 92 (3d Cir. 2010) (“Under 48 U.S.C. §

1613, the Third Circuit has temporary certiorari jurisdiction

over final decisions of the Virgin Islands Supreme Court.”).

For purposes of adjudicating the present motion, I will

assume that the March 8 decision is a “final decision,” and

therefore one that would fall within the scope of this Court’s

jurisdiction under 48 U.S.C. § 1613 if a timely certiorari

petition were filed. As such, HOVIC’s sixty-day period to

file a certiorari petition in this matter expired on Monday,

May 9, 2011.1 HOVIC filed its application for an extension

1

The sixtieth day actually fell on May 7, 2011, which was a

Saturday. While our local rules do not specify a method for

computing the last day for filing a petition for a writ of

4

of time on May 3, six days prior to the due date. HOVIC asks

for an extension of thirty days, until June 8.2

HOVIC contends that it needs more time because it

retained appellate counsel “to advise it of its procedural

options and to represent it before this Court only a few weeks

ago.”3 Appellate counsel notes that the Supreme Court

certiorari, “[t]he Federal Rules of Appellate Procedure, to the

extent that they are not inconsistent with any statutory

provisions or these [local] rules, may be applied to a

proceeding seeking a writ of certiorari.” LAR 112.14(a).

Federal Rule of Appellate Procedure 26(a) governs the

computation of “any time period specified … in any local rule

… that does not specify a method of computing time.” Rule

26(a) is not inconsistent with LAR 112.2(a) and applies here.

“When the period is stated in days … include the last day of

the period, but if the last day of the period is a Saturday, …

the period continues to run until the end of the next day that is

not a Saturday, Sunday, or legal holiday.” Fed. R. App. P.

26(a)(1)(C). Accordingly, HOVIC’s last day on which to file

a certiorari petition was Monday, May 9, 2011.

2

HOVIC subsequently submitted its proposed certiorari

petition for filing on June 8, and our Clerk entered an order

holding the petition in abeyance pending disposition of the

application for an extension of time.

3

HOVIC was represented before the Supreme Court of the

Virgin Islands by counsel based in St. Croix. That same

counsel is listed on the application for an extension of time,

along with HOVIC’s recently added appellate counsel, Peter

5

denied the motion to recall the mandate on April 28, 2011,

and “the analysis contained in that order must be addressed in

any petition that is to be filed.” Finally, appellate counsel

asserts that he had competing obligations prior to the due date

for HOVIC’s certiorari petition, including the filing of a

petition for rehearing and an extension request in other cases.

In addition, on the Thursday and Friday before the Monday

on which the certiorari petition was due, counsel had

commitments to the Third Circuit Bar Association and Third

Circuit Judicial Conference, including an appearance as a

panelist at a Judicial Conference meeting.

II.

Congress has provided that, for the first fifteen years

following establishment of the Supreme Court of the Virgin

Islands, the Third Circuit Court of Appeals “shall have

jurisdiction to review by writ of certiorari all final decisions

of the highest court of the Virgin Islands from which a

decision could be had.” 48 U.S.C. § 1613. Congress also has

conferred upon this Court “jurisdiction to promulgate rules

necessary to carry out the provisions of [§ 1613].” Id.

Consistent with this mandate, we adopted local rules in 2007

to govern practice and procedure in the exercise of our

certiorari jurisdiction.4 See LARs 112.1-14. Among other

Goldberger, Esq. Mr. Goldberger’s signature appears on the

extension application.

4

The Supreme Court of the Virgin Islands was established

in 2004, see Pichardo, 613 F.3d at 94, and “officially assumed

appellate jurisdiction over appeals from the Superior Court on

January 29, 2007.” Hypolite v. People, 51 V.I. 97, 101 (V.I.

6

things, we established a sixty-day deadline to file a certiorari

petition, LAR 112.2(a), and made allowance for a petitioner

to seek additional time. Our local rule regarding extensions

of time to file a certiorari petition provides as follows:

A circuit judge, for good cause shown, may

extend the time for filing a petition for writ of

certiorari or cross-petition for a period not

exceeding 30 days. Any application for

extension of time within which to file a petition

for writ of certiorari must set out the grounds on

which the jurisdiction of this court is invoked,

must identify the judgment sought to be

reviewed and have appended thereto a copy of

the opinion, and must set forth with specificity

the reasons justifying an extension. An

untimely petition for writ of certiorari must be

accompanied by a motion for extension of time.

However, an application for extension of time

to file a petition for certiorari ordinarily will not

be granted, if filed less than 5 days before the

expiration of the time to file a petition.

LAR 112.4(a).

This court has not, in a precedential decision,

addressed the showing required to establish “good cause” for

an extension of time to file a certiorari petition.5 Because

2009).

5

I am satisfied that HOVIC’s application complies with the

remaining requirements of LAR 112.4(a). HOVIC has

7

“good cause” is undefined in LAR 112.4(a), my undertaking

here is to give meaning to the term. I begin, as I must, by

looking to the plain language of the rule. See, e.g., In re Lord

Abbett Mut. Funds Fee Litig., 553 F.3d 248, 254 (3d Cir.

2009).

“Good cause” is understood to mean “[a] legally

sufficient reason,” and it reflects “the burden placed on a

litigant (usu. by court rule or order) to show why a request

should be granted or an action excused.” Black’s Law

Dictionary 251 (9th ed. 2009). Of course, a proffered reason

appended a copy of the opinion sought to be reviewed and set

forth with adequate specificity the reasons why it believes an

extension of time should be granted. In addition, HOVIC has

“set out the grounds on which the jurisdiction of this court is

invoked.” LAR 112.4(a). As mentioned earlier in the text,

there is an issue as to whether the Supreme Court’s March 8

decision is “final” and reviewable at this time. Nevertheless,

I do not construe LAR 112.4(a) to require a fully developed

argument on finality in support of an application for an

extension of time. HOVIC’s invocation of our jurisdiction

under § 1613, and its expression of an intent to present

argument in the certiorari petition on whether the March 8

decision meets the finality requirement, are enough to satisfy

LAR 112.4(a). In the certiorari petition itself, a petitioner is

required to present a complete argument regarding this

Court’s jurisdiction, including “a concise statement of the

ground on which the jurisdiction of this court is invoked, with

citations to applicable statutes and stating relevant facts

establishing the finality of the order.” LAR 112.6(a)(3).

8

or “cause” that may be legally sufficient in one context may

not be so in another. Federal practice is replete with rules that

require a moving party to show “good cause,”6 but

6

See, e.g., Fed. R. Civ. P. 4(m) (“[I]f the plaintiff shows

good cause for the failure, the court must extend the time for

service for an appropriate period.”); Fed. R. Civ. P. 6(b)(1)

(providing, with certain exceptions, that “[w]hen an act may

or must be done within a specified time, the court may, for

good cause, extend the time”); Fed. R. Civ. P. 16(b)(4) (a

scheduling order “may be modified only for good cause and

with the judge’s consent”); Fed. R. Civ. P. 26(b)(1) (“For

good cause, the court may order discovery of any matter

relevant to the subject matter involved in the action.”); Fed.

R. Civ. P. 55(c) (court may set aside an entry of default “for

good cause”); Fed. R. Civ. P. 65(b)(2) (temporary restraining

order “expires at the time after entry -- not to exceed 14 days

-- that the court sets, unless before that time the court, for

good cause, extends it for a like period or the adverse party

consents to a longer extension.”); Fed. R. App. P. 2 (“On its

own or a party’s motion, a court of appeals may—to expedite

its decision or for other good cause—suspend any provision

of these rules in a particular case and order proceedings as it

directs, except as otherwise provided in Rule 26(b).”); Fed. R.

App. P. 4(a)(5)(A) (allowing district court to extend time to

file notice of appeal if moving party “shows excusable

neglect or good cause”); Fed. R. App. P. 26(b) (providing,

with certain exceptions, that “[f]or good cause, the court may

extend the time prescribed by these rules or by its order to

perform any act, or may permit an act to be done after that

time expires”).

9

determining whether the showing made will justify granting

the relief sought can be accomplished only by considering the

specific nature and purpose of the rule at issue. See, e.g.,

Shingara v. Skiles, 420 F.3d 301, 306 (3d Cir. 2005) (holding

that “there is good cause [for a protective order under Fed. R.

Civ. P. 26] when a party shows that disclosure will result in a

clearly defined, specific and serious injury but that broad

allegations of harm are not sufficient to establish good

cause”); MCI Telecomms. Corp. v. Teleconcepts, Inc., 71

F.3d 1086, 1097 (3d Cir. 1995) (explaining that good cause to

excuse late service under former Fed. R. Civ. P. 4(j) “requires

a demonstration of good faith on the part of the party seeking

an enlargement and some reasonable basis for noncompliance

within the time specified in the rules,” and “absence of

prejudice alone can never constitute good cause”) (quotation

marks omitted). In short, the term “good cause” itself does

not define the precise showing that we should require in the

particular context of a party seeking more time to file a

petition for a writ of certiorari.

The history behind the adoption of LAR 112.4(a), as

reflected in the Committee Comments to the LARs, does not

shed light on the showing required. It appears that several

provisions in our local rules regarding certiorari review were

modeled after Ninth Circuit Court of Appeals Local Circuit

Rule 6-2, which established procedures for that court’s

interim exercise of certiorari jurisdiction over the Supreme

Court of Guam. However, Rule 6-2, which the Ninth Circuit

abrogated in 2005 consistent with the termination of its

certiorari jurisdiction, see 48 U.S.C. § 1424-2 (as amended

Oct. 30, 2004); Santos v. Guam, 436 F.3d 1051, 1052 (9th

Cir. 2006), contained no provision for seeking an extension of

10

time to file. See 9th Cir. R. 6-2 (2004). As such, LAR

112.4(a) was not based on a Ninth Circuit rule that provides

meaningful guidance for the present inquiry. And while it

appears that LAR 112.4(a) was modeled after the United

States Supreme Court’s rule on extensions of time, which is

discussed below, the Committee Comments do not expressly

identify a specific source for the rule.7

7

That being said, I conclude that Rule 112.4(a) was

modeled after the Supreme Court’s rule. As originally

drafted and submitted for public comment, Rule 112.4(a),

which was proposed as “Rule 112.2(f),” provided as follows:

A circuit judge, for good cause shown, may

extend the time for filing a petition for writ of

certiorari or cross-petition for a period not

exceeding sixty (60) days. Any application for

extension of time within which to file a petition

for writ of certiorari must set out the grounds on

which the jurisdiction of this court is invoked,

must identify the judgment sought to be

reviewed and have appended thereto a copy of

the opinion, and must set forth with specificity

the reasons justifying an extension. An

application for extension of time to file a

petition for certiorari must be submitted at least

ten (10) days before the specified final filing

date and will not be granted, except in the most

extraordinary circumstances, if filed less than

ten (10) days before that date.

11

Lacking authority and commentary from this court as

to the intended meaning of “good cause” in LAR 112.4(a), I

must look elsewhere. Fortunately, there are analogues to

draw upon. Courts routinely interpret and apply the good-

cause standard under rules that, like LAR 112.4(a), govern

requests for extensions of time to act. I find two such rules

instructive here: (1) the United States Supreme Court’s rule

governing extensions of time to file for certiorari review,

which, as noted, appears to have served as the original model

for LAR 112.4(a); and (2) Federal Rule of Appellate

Procedure 4(a)(5)(A), which governs motions to extend the

time to file a notice of appeal.

A.

The current Supreme Court rule regarding extensions

of time to file a petition for a writ of certiorari provides in

relevant part as follows:

For good cause, a Justice may extend the time

to file a petition for a writ of certiorari for a

period not exceeding 60 days. An application

to extend the time to file shall set out the basis

for jurisdiction in this Court, identify the

judgment sought to be reviewed, include a copy

of the opinion and any order respecting

rehearing, and set out specific reasons why an

extension of time is justified. The application

must be filed with the Clerk at least 10 days

This language tracked the Supreme Court rule on extensions

of time in most respects.

12

before the date the petition is due, except in

extraordinary circumstances. … An application

to extend the time to file a petition for a writ of

certiorari is not favored.

Sup. Ct. R. 13(5).

Rule 13(5) requires a showing of “good cause” to

justify extending the time to seek review via certiorari –

precisely what HOVIC must show under LAR 112.4(a).

Thus, the Supreme Court’s treatment of Rule 13(5) is perhaps

our best guide to understanding LAR 112.4(a). One

difference between these two rules does merit brief

discussion. The Supreme Court states in Rule 13(5) that a

request for an extension of time “is not favored.” In contrast,

LAR 112.4(a) does not express general disfavor for extension

requests, and frowns upon only eleventh-hour requests (i.e.,

requests filed less than five days before the deadline),

explaining that those requests “ordinarily will not be

granted.” As noted, HOVIC’s application was filed more

than five days before its petition was due. Under Rule 13(5),

the Supreme Court would appear to work from the premise

that granting additional time to an applicant like HOVIC is

not favored. I apply no such presumption under LAR

112.4(a). Accordingly, to the extent that this difference in

analytical approach is manifest in the Supreme Court’s

interpretation of “good cause,” I do not intend by my reliance

upon the Supreme Court’s lead to imply disfavor for

extension requests filed in this Court more than five days

before the petition is due. Our rule requires only that such

13

requests be supported by “good cause.”8

Applications under Rule 13(5) are referred to an

individual Justice for determination, and certain Justices have

addressed them in published decisions, either under Rule

13(5) or its predecessors. For example, in Carter v. United

States, 75 S. Ct. 911 (Frankfurter, Circuit Justice 1955),

Justice Frankfurter denied an extension of time for failure to

show “real cause,” explaining that “[t]he nature and

substantiality of the point in controversy emerge from the

opinion of the Court of Appeals,” and that “[c]ounsel who

urged the point below is counsel here; the addition of another

counsel hardly affords ground for the desired extension.” Id.

at 911. Further, while acknowledging that, “if counsel are

actively engaged in the trial of a cause during the period

within which a petition for certiorari must be filed, an

appropriate extension of time might be afforded,” id., Justice

Frankfurter observed that, in general, “the responsibility of

counsel to litigation in this Court should take precedence,”

8

There are other differences between Rule 13(5) and LAR

112.4(a). The Supreme Court allows for a maximum sixty-

day extension of time (compared to our thirty days), and

requires the filing of an extension request “at least 10 days

before the date the petition is due, except in extraordinary

circumstances.” These additional distinctions are not

meaningful to the analysis here, which is limited to how the

Supreme Court has applied its good-cause standard, and, by

analogy, the showing that this Court should require when a

petitioner moves for an appropriate extension of time more

than five days before the certiorari petition is due.

14

id., and “the contents of a petition for certiorari seldom call

for the kind of research which may be demanded for a brief

on the merits[.]” Id.

In Kleem v. INS, 479 U.S. 1308 (Scalia, Circuit

Justice 1986), Justice Scalia denied an extension of time for

failure to show good cause, observing that “counsel has given

no reason for his request other than his desire for additional

time to research constitutional issues.” Id. at 1308. Because

“[t]he same reason could be adduced in virtually all cases …

[i]t does not meet the standard of ‘good cause shown’ for the

granting of a disfavored extension.” Id.

In Madden v. Texas, 498 U.S. 1301 (Scalia, Circuit

Justice 1991), Justice Scalia granted three applications for

additional time requested by counsel representing capital

defendants, and denied a fourth application. He found that

“none of these [four] applications, as an original matter,

would meet the standard of ‘good cause shown’ for the

granting of an extension.” Id. at 1304. Justice Scalia rejected

as “unremarkable” the suggestion of one litigant’s counsel

that more time was needed to consult with another lawyer, as

“all petitioners can honestly claim that they would benefit

from additional advice and consultation.” Id. He also

rejected the contention that the withdrawal of appellate

counsel would “automatically justify an extension of time,” as

there was no indication “that the withdrawal was a reasonably

unforeseeable occurrence.” Id. Further, while the “additional

justification” of the death of counsel’s father “would in some

circumstances qualify as ‘good cause shown,’” id., counsel in

question had not been working on the petition and “prevented

by the death from completing his work,” id., and there was

15

“no indication why some other attorney [from the same

office] could not have undertaken this last-minute task, nor

why the task has been left to the last minute.” Id.

Nevertheless, noting that he had not previously set forth his

views on the good-cause standard in his capacity as Circuit

Justice for the Fifth Circuit, Justice Scalia granted thirty-day

extensions in three of the cases, but warned that similar

requests would not be granted in the future. Id. at 1305. He

denied more time in the fourth case on the ground that it

would be improper to extend the period in which to file a

certiorari petition to a date after the petitioner’s established

execution date. Id.

In Mississippi v. Turner, 498 U.S. 1306 (Scalia,

Circuit Justice 1991), Justice Scalia denied the State’s request

for an extension of time, explaining that “counsel’s

overextended caseload is not ‘good cause shown’ unless it is

the result of events unforeseen and uncontrollable by both

counsel and client.” Id. at 1306. He added that, “[l]ike any

other litigant, the State of Mississippi must choose between

hiring more attorneys and taking fewer appeals. Its budget

allocations cannot, and I am sure were not expected to, alter

this Court’s filing requirements.” Id. at 1306-07.

Finally, in Penry v. Texas, 515 U.S. 1304 (Scalia,

Circuit Justice 1995), Justice Scalia found an absence of good

cause where counsel sought more time based on the

voluminous record, the “breadth of errors,” and his absence

from the office during the week before the petition was due.

Id. at 1304. Justice Scalia observed that “all applicants can

honestly claim that they would benefit from additional time to

prepare a petition for certiorari,” id. at 1305-06, and counsel’s

16

“planned absences should affect neither the degree of

preparation afforded a client’s case nor the orderly

administration of our deadlines.” Id. at 1306.

These five decisions, four of which were authored by

the same Justice, represent a limited survey of how the

Supreme Court has disposed of extension requests. Beyond

that, I assume that other Justices have entertained requests for

more time without publishing their views. Nevertheless,

useful guidance on what does and does not constitute “good

cause” emerges from the decisions I have canvassed. It is not

enough for counsel to claim that s/he is too busy to meet the

deadline, has plans to be on vacation, wants more time to

study the record, or was only recently added to the client’s

team of lawyers. Such assertions, inasmuch as they turn on

factors within the control of counsel or the client, can be

raised in most any case and generally do not justify extending

the deadline for certiorari review. Rather, unforeseen or

uncontrollable events (e.g., a death in the family, illness, or

active engagement at trial) lie at the heart of the “good cause”

requirement for additional time to seek certiorari.

I am satisfied that requiring such a showing, albeit a

standard suggested by only a handful of cases on the

application of Rule 13(5), is consistent with the purpose

served by LAR 112.4(a). Our sixty-day period in which to

file a certiorari petition (like the ninety-day period in the

Supreme Court, see Sup. Ct. R. 13(1)), affords an ample

amount of time to prepare and file a petition in accordance

with our local rules. See LAR 112.6 (setting forth

requirements for the contents of a certiorari petition). This

deadline is sufficiently generous that it ought not to be

17

extended as a routine matter, merely for the convenience of

counsel or the petitioner. The filing of a certiorari petition

commences a new proceeding between the parties, much like

the filing of a notice of appeal. And just as extensions of the

time to appeal are limited and exceptional, see Fed. R. App.

P. 4(a)(5)(A) and 26(b)(1), so too should be extensions of the

time to seek certiorari review. The interest in finality and

desire to avoid needless delay that underlie our rules and

procedures are best served by strict adherence to the sixty-day

deadline, absent some unusual circumstance.

I consider this approach consistent with the

requirements of Federal Rule of Appellate Procedure

4(a)(5)(A), which provides that

[t]he 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 good cause.

Fed. R. App. P. 4(a)(5)(A). The Committee Note to the rule

highlights the difference between the excusable neglect and

good cause standards, and explains the showing required for

“good cause” to extend the time to file a notice of appeal:

The good cause and excusable neglect standards

18

have “different domains.” 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.

Fed. R. App. P. 4(a)(5)(A)(ii) (2002 Committee Note,

Changes Made After Publication and Comments) (emphasis

added).

A petition for a writ of certiorari is, for purposes of the

present discussion, the functional equivalent of a notice of

appeal: it initiates an appellate proceeding in this Court in the

form of a request for discretionary review.9 While a denial of

9

Because a petition for a writ certiorari is the functional

equivalent of a notice of appeal, Federal Rule of Appellate

Procedure 26(b) does not inform my analysis of good cause

for extending the time to file a petition for a writ of certiorari

under LAR 112.4(a). The plain text of Rule 26(b), which

permits a court of appeals to extend the time prescribed by the

Appellate Rules “to perform any act, or may permit an act to

be done after that time expires,” explicitly states that it may

not extend the time to file a notice of appeal, a petition for

19

certiorari review would end the matter, and thus the life of the

proceeding potentially could be short, it is a new appellate

proceeding nonetheless. The good cause showing needed to

support a request for more time to appeal under Rule 4(a)(5) –

“something that is not within the control of the movant” – fits

the purpose of LAR 112.4(a), as well. Any lesser

requirement, such as granting an extension based on a mere

showing of no prejudice to the non-moving party, would be

inconsistent with the goal of affording more time only as a

limited exception to the deadline for commencing a certiorari

proceeding.

B.

In light of the foregoing, I conclude that a petitioner

seeking an extension under LAR 112.4(a) must demonstrate a

need for more time based on an event or cause beyond the

control of counsel or the petitioner. This standard will help

direct petitioners toward strict compliance with the sixty-day

period for seeking review and ensure that extensions of the

deadline remain the exception and not the rule.

HOVIC has not demonstrated good cause under this

standard. HOVIC notes that it recently retained an additional

lawyer for this proceeding, and counsel contends that he

needs more time to prepare the certiorari petition. HOVIC

fails, however, to point to any event beyond its control as

having affected its ability to comply with the sixty-day

deadline. HOVIC itself chose to hire an additional lawyer as

permission to appeal, a petition for review. Fed. R. App. P.

26(b)((1)-(2).

20

the deadline approached, and “the addition of another counsel

hardly affords ground for the desired extension.” Carter, 75

S. Ct. at 911. Further, the primary issue on which HOVIC

intends to seek review – essentially, whether the appeal

before the Supreme Court of the Virgin Islands became moot

when the parties agreed to settle – would not appear to require

much study of the record by HOVIC’s newly retained

appellate counsel.

While appellate counsel contends that he had other

obligations during the week when the certiorari petition was

due, he does not claim to have been unaware of those

obligations well in advance, nor does it appear that he is so

encumbered by them that requiring compliance with the

deadline would be unreasonable. A busy schedule, by itself,

is not good cause for more time. See Turner, 498 U.S. at

1306. HOVIC also fails to explain (i) why its counsel based

in St. Croix could not prepare, or at least take the lead in

preparing, the certiorari petition, (ii) why another attorney

from appellate counsel’s office could not do so, or (iii) “why

the task has been left to the last minute.” Madden, 498 U.S.

at 1304.

Finally, I note that the putative respondent, Mr.

Joseph, has not opposed the application for an extension of

time. Assuming, arguendo, an absence of prejudice to Mr.

Joseph, that factor would seem to weigh in HOVIC’s favor.

It is not, however, sufficient by itself to support granting the

requested extension. In any event, I am unable to infer with

certainty an absence of prejudice. As stated, there is a

jurisdictional question as to whether the Supreme Court’s

decision is final and reviewable at this time. To the extent

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that HOVIC’s filing of a certiorari petition will commence a

proceeding that ultimately will be dismissed for lack of

jurisdiction, the filing may only delay further proceedings in

the Superior Court, or delay consummation of the parties’

purported settlement. As such, any extension of time for

certiorari review could run counter to Mr. Joseph’s interests.

III.

For the foregoing reasons, I conclude that HOVIC has

not made a showing of good cause under LAR 112.4(a).

Nevertheless, I will grant HOVIC’s application for a thirty-

day extension of time in light of the absence of prior guidance

from this Court on the showing required. See Madden, 498

U.S. at 1305. I do not find it unreasonable for HOVIC to

have believed that its grounds for seeking additional time

would suffice under the heretofore unexplained good cause

standard of LAR 112.4(a). HOVIC’s right to seek certiorari

review should not be prejudiced under the circumstances.

Accordingly, the Clerk is hereby directed to docket HOVIC’s

petition for a writ of certiorari, with a filing date of June 8,

2011. Respondent, if he so chooses, may file a brief in

opposition to the certiorari petition within thirty days of the

date of this decision. See LAR 112.8.

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