Glenford Ragguette v. Premier Wines & Spirits

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 11-2553 and 11-2669

_______________

GLENFORD RAGGUETTE,

Appellant in No. 11-2553

v.

PREMIER WINES & SPIRITS,

Appellant in No. 11-2669

_______________

On Appeal from the District Court

of the Virgin Islands

(D.C. Civil No. 2-06-cv-00173)

District Judge: Hon. Timothy J. Savage

_______________

Argued May 9, 2012

BEFORE: CHAGARES, JORDAN and

COWEN, Circuit Judges

(Filed: August 15, 2012)

Lee J. Rohn, Esq.

E. Geoffrey Wolfe, Esq. (Argued)

Lee J. Rohn & Associates

1101 King Street

Christiansted, VI 00820

Counsel for Appellant in No. 11-2553

Anna H. Paiewonsky, Esq. (Argued)

6501 Red Hook Plaza, Suite 201

St. Thomas, VI 00802

Counsel for Appellant in No. 11-2669

_______________

OPINION

_______________

COWEN, Circuit Judge.

Plaintiff Glenford Ragguette appeals from the order of

the District Court of the Virgin Islands granting the motion

for summary judgment filed by Defendant Premier Wines and

Spirits, Ltd. In turn, Premier appeals from the order of the

District Court granting Ragguette‘s motion for an extension

of time to file a notice of appeal under Federal Rule of

Appellate Procedure 4(a)(5). We hold that the District Court

abused its discretion by finding that Ragguette established

―excusable neglect‖ under this rule. We accordingly

2

determine that the motion for an extension of time to file a

notice of appeal under Rule 4(a)(5) was improvidently

granted. We will therefore dismiss Ragguette‘s appeal for

lack of appellate jurisdiction.

I.

Ragguette alleged a number of employment

discrimination and related claims against his former

employer, Premier. Throughout this litigation, Ragguette has

been represented by attorneys from a firm currently known as

Lee J. Rohn & Associates—and primarily by Lee J. Rohn,

Esquire, herself.

In a January 5, 2010 order, the District Court granted

Premier‘s summary judgment motion and entered judgment in

favor of Premier and against Ragguette. The District Court

provided its reasons for this determination in an

accompanying memorandum opinion entered on the same

day.

Ragguette‘s counsel failed to file a notice of appeal

within 30 days of the judgment or order pursuant to Federal

Rule of Appellate Procedure 4(a)(1)(A). On January 13,

2010, Premier filed a motion for attorneys‘ fees and costs

under Federal Rule of Civil Procedure 68, specifically asking

for the award to be directed (jointly and severally) against

Ragguette and his counsel. Ragguette submitted an

opposition to this fee motion on January 28, 2010. In a

February 8, 2010 order, the District Court scheduled a fee

hearing for February 23, 2010. But, on February 24, 2010,

3

the hearing was rescheduled for March 1, 2010. Following

this hearing, Premier filed a contested motion to amend its fee

motion, requesting, among other things, a fee award directed

against Rohn in her individual capacity. The original motion

and the motion to amend, however, were subsequently

withdrawn by Premier.

On March 5, 2010, Ragguette filed a motion for

issuance of an order pursuant to Federal Rule of Civil

Procedure 58(e), or, in the alternative, for an order granting

an extension of time to file a notice of appeal pursuant to

Federal Rule of Appellate Procedure 4(a)(5). With respect to

the alternative form of relief, he argued, inter alia, that his

attorney‘s failure to file a timely notice of appeal was caused

by excusable neglect. In short:

Because of trial preparation for several

other cases, counsel failed to actually issue the

computer task. Specifically, counsel annotated

the order as to appeal issues and provided it to

the secretary on the case. The procedure in the

office is that a task should have been generated

by counsel to file the notice of appeal at the

same time. The secretary scanned the order

with the annotation in to the system on January

11, 2010 (Exhibit 1) but because there was no

task did not prepare the appeal. Counsel was

unaware that the notice of appeal had not been

e-filed and did not discover the same until

preparing for the hearing on the fee issue when

she did not find a notice of appeal in the

4

computer file.

In this case, the failure to file a timely

notice of appeal was due to excusable neglect,

so as to warrant the granting of the motion for

extension of time. The objective record shows

that lead counsel for Plaintiff ―annotated the

Memorandum Opinion of the summary

judgment ruling to be used to draft the notice of

appeal to move to appeal on the grounds as

noted in the annotated document, and on the

ground of the rulings denying discovery. See

screen shot showing date the annotated

judgment was scanned as of January 11, 2010

(Exhibit 1). Counsel had requested that the

annotated motion be scanned into the appeals

file. See, Exhibit 1, the annotations on the

Memorandum. Counsel was in trial and in

mediations and then off island as set forth

herein.

It has now come to counsel‘s attention

that all that was done was that the annotated

Memorandum Opinion was scanned. The fact

that counsel was off-island, and the fact that in

her absence, the notice would have been

prepared and reviewed and filed by another

staff attorney, Counsel reasonably thought that

the task had been issued.

(A343-A344 (error in original).) A so-called ―screen shot‖

5

(which listed a pdf file entitled ―Annotations-re-

Memorandum-Opinion-and-Thoughts-for-Appeal-

01/11/2010‖ and indicated that this document was last

modified at 7:44 a.m. on January 11, 2010) was attached as

Exhibit 1 to Ragguette‘s motion. (Dist. Ct. Dkt. Entry #137-

1.)

Premier filed its opposition to this motion on March

16, 2010, and Ragguette submitted a reply on April 1, 2010.

He also submitted an affirmation from Rohn herself as well as

an annotated copy of the District Court‘s January 5, 2010

memorandum opinion (attached as Exhibit A). Rohn

provided the following explanation for why the notice of

appeal had not been filed:

2. As represented in the Motion for

Issuance of An Order pursuant Pursunat-to-

FRCP 58(e)-or-in-the-Alternative-an-Order-

Granting-an-Extention-of-Time-to-File-a-

Notice-of-Appeal-03-05-2010 after annotating

the court‘s ruling, I submitted to my legal

assistant and new motions attorney the

annotated ruling, with the intention that a notice

of appeal should be filed on the grounds as

annotated in the ruling. See, Exhibit A,

Annotated Ruling.

3. I had a mental lapse and failed to realize

I was working with my relatively new motion

attorney and not my former associate and

partner of over 11 years who would have

6

correctly interpreted my notes and

automatically calendared and drafted a notice of

appeal without the need of a specific task,

instead of simply filing the annotated decision.

I further intended to issue a task and reasonably

thought I had done so. It appears I either didn‘t

send the task or didn‘t complete the procedure

as no task was generated by the computer.

4. That my intention was to appeal the

ruling is manifest from the annotated decision.

5. Given the press of matters requiring my

attention, matters that are objectively verifiable,

it is understandable and reasonable under the

circumstances that this oversight occurred.

6. I honestly believed that a notice of

appeal was filed in accordance with my

annotations on the decision.

7. I did not mention the intent to appeal

during the hearing regarding the motion for fees

because I wanted to verify my records as to

what occurred.

(A355-A356 (errors in original).) There were a number of

handwritten comments and notations on the annotated

memorandum opinion. Most significantly, the following

comment was written at the top of the first page: ―*Scan in as

‗thoughts Re appeal‘.‖ (A357.)

7

The District Court denied Ragguette‘s motion on May

14, 2010. Ragguette filed a notice of appeal on May 20, 2010

(a notice of appeal was previously entered on the docket on

May 17, 2010, but Ragguette was then directed to refile using

the correct prompt). On April 19, 2011, we upheld the

District Court‘s denial of his request for an order under

Federal Rule of Civil Procedure 58(e) because Premier never

filed the appropriate motion for fees and costs pursuant to

Federal Rule of Civil Procedure 54(d)(2). However, we

vacated the District Court‘s denial of his request for relief

under Rule 4(a)(5) and remanded ―the case to the District

Court to analyze whether the neglect at issue in this case was

excusable under the Pioneer standard.‖ Ragguette v. Premier

Wines & Spirits, Ltd., 424 F. App‘x 155, 157 (3d Cir. 2011)

(footnote omitted). We explained that the Supreme Court‘s

ruling in Pioneer Investment Services Co. v. Brunswick

Associates Limited Partnership, 507 U.S. 380 (1993),

established an equitable approach to the ―excusable neglect‖

determination. While a court must still take into account all

of the relevant circumstances, ―Pioneer provides four factors

to consider when making this equitable determination: (1) the

danger of prejudice to the non-movant; (2) the length of the

delay and the impact on judicial proceedings; (3) the reason

for the delay, including whether it was within the reasonable

control of the movant; and (4) whether the movant acted in

good faith.‖ Ragguette, 424 F. App‘x at 156-57 (citing

Pioneer, 507 U.S. at 395). We concluded that the District

Court abused its discretion by disposing of the Rule 4(a)(5)

motion ―‗without an opinion, without a reason, and more

importantly, without reference to the Pioneer four-factor

8

balancing standard.‘‖ Id. at 157 (quoting In re Diet Drugs

Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir. 2005))).

On May 16, 2011, Premier filed its supplemental

opposition to the Rule 4(a)(5) motion. Among other things,

Premier referred to Ragguette‘s testimony at a recusal hearing

held before the District Court on January 26, 2011. It also

submitted a letter to Ragguette from a legal assistant at the

Rohn law firm named Enith Abraham, which was dated

January 14, 2000 and stated that the enclosed documents were

being returned to him for his records. Most significantly,

Premier attached as an exhibit a series of e-mails exchanged

by Rohn and Glenda Cameron, Esquire (who was then

working with the firm on a contract basis), which had been

produced in connection with an unsuccessful recusal motion

previously filed by Ragguette and other Rohn clients.

Rohn began the rather lengthy e-mail chain at 2:03

p.m. on March 1, 2010:

it appears that the order on summary judgment

came in on January 5, 2010. although I did an

annotation of the order and instructed taht it be

placed in the appeal file after the finling of the

notice of appeal, the appeal was not filed. i

only learned about it to day when prepping for

argument on the issue of whether defendant can

be awarded fees and costs. that hearing was

today. the motion had originally been brought

under rule 68 re offer of judgment. but at

argument today the defendant stated it wanted

9

to add an argument under title vii that the

complaint was frivolous and as such defendant

should be awarded fees. the judge then invited

her to also make an argument that the fees

should be against counsel and not plaintiff. we

argued the motion woould not be timely and

opposed. court granted her a week to amend

her motion to add issues re why case was

frivolous etc and why fees should be awarded

under title vii. can I use that pending motion to

file the appeal of hte underlying order for sj to

wait and file appeal until that motion is ruled

on? if not is there someway I can file the

appeal out of time.

(A406 (errors in original).) The two attorneys then

exchanged e-mails addressing, among other things, the

different options that could be available to pursue an appeal,

when any motion for relief should be filed and what should be

included, legal research, and the drafting of the motion itself.

Asked by Cameron to provide ―facts showing ‗good cause‘

for the failure to file the notice of appeal,‖ Rohn explained

that:

I annotated the sj ruling and stated move to

appeal along with rulings denying discovery.

Please scan in appeal file. Instead all that was

done was it was scanned into appeal file. I got a

task response done. I thought it meant both. It

only meant scanned. Normally under old rules I

would know if notice done because it would

10

have been signed and physically filed. With

new if I am not there it just gets e filed so I have

no way of on hand monitoring. I did not realize

not filed til prepared for argument on atty fees

motion

(A396 (errors in original).)

On May 20, 2011, the District Court conducted a

hearing on the Rule 4(a)(5) motion. Ragguette was not

present, but Rohn provided a detailed (if unsworn) account of

what had happened.

Rohn told the District Court that her firm used a

system of ―computer tasks‖ and ―paper tasks‖ for making and

monitoring assignments. The Outlook computer program‘s

task system apparently allows Rohn to assign a particular task

to a specific subordinate together with a deadline for

performing the task itself. If the subordinate does not

complete the task within the time limit, ―that task comes back

to you in red saying, this task has not been done.‖ (A451.)

On the other hand, there is also ―the physical paper, and the

conversation.‖ (Id.) Rohn claimed that, although she

believed that she had successfully generated both a computer

task as well as a paper task, she actually only ever created a

paper task.

Rohn further explained that the new attorney or

appellate motions clerk assigned this task ultimately worked

for the firm for less than a year (and, at the time at issue here,

had not been with the firm for a very long time). Rohn

11

confirmed that ―I don‘t get any ECF1 files at all, because I

don‘t monitor those deadlines,‖ and that, instead, ―all the ECF

filings in my office, even [those] directed to me internally

through technology, go to the attorney who is actually in

charge of monitoring those [cases].‖ (A440 (footnote

added).) Although a self-confessed ―control freak‖ who likes

to review every document with her signature (A444), it is still

possible that she would not review a particular motion, even

though it has her ―computer signature on it,‖ if she was

unavailable at the time that the document had to be filed

(A441). She denied taking the position that she missed the

deadline in this case simply because there ―was just too much

going on.‖ (A444.) In contrast, she purportedly missed this

deadline because she believed the notice of appeal had been

filed given the fact that she ―instructed that it be filed‖ and

―gave the document to the motions clerk to assign it and to do

the notice of appeal,‖ which would then have gone out (after

being reviewed by at least one attorney at her firm) as a non-

substantive but time-sensitive filing. (A444-A445.) In other

words, Rohn‘s various activities at the time that the notice of

appeal should have been filed established ―why the appeal,

the notice of appeal to be signed would not have necessarily

come to me‖ and why she ―wouldn‘t have notice that

someone else didn‘t sign the notice of appeal.‖ (A445-A446.)

Rohn further indicated that, after the entry of the summary

judgment order, she consulted with her client about filing an

1

The Case Management / Electronic Case Filing

(CM/ECF) system is a computer case management system

that allows courts to maintain electronic case files and

attorneys to file (and serve) documents through the Internet.

12

appeal and that he was in agreement with this course of

action. She also claimed that it was not her experience that

the Third Circuit sends out scheduling orders within 7 to 10

days of the filing of a notice of appeal. According to Rohn,

this Court instead sends out a mediation order around 30 days

after the notice of appeal‘s filing, and a transcript purchase

order or anything else would have gone to Rohn‘s associate—

not Rohn. In any case, she purportedly would have

discovered the oversight when the appellate briefing

schedules were not issued 45 or 60 days after the notice of

appeal was supposed to be filed.

In the end, Rohn accepted ―responsibility that while I

believed that I had followed my regular procedure of the

office, which is a computer tasking system to follow

deadlines, it appears that I inadvertently did not do so.‖

(A451.) She defended her firm‘s ―very involved expensive

computer system to track documents,‖ and claimed that this

case involved nothing more than unfortunate ―human error,‖

which is the kind of mistake that everybody makes. (A452.)

On June 7, 2011, the District Court granted

Ragguette‘s motion for an extension of time to file a notice of

appeal under Rule 4(a)(5). Applying the Pioneer factors, the

District Court focused on the circumstances as they existed on

the day the motion was actually filed. It did so because any

subsequent delay cannot be attributed to Ragguette and

instead resulted from the judicial proceedings. ―Ragguette

offers his attorney‘s mistake in following-up instructions to

her staff to file a notice of appeal as the excuse for missing

the filing deadline.‖ Ragguette v. Premier Wines & Spirits,

13

Ltd., Civil Action No. 2006-0173, 2011 WL 2359920, at *1

(D.V.I. June 7, 2011). According to the District Court,

Ragguette had failed to articulate any specific reason for not

filing a timely notice of appeal in his original motion and had

instead merely cited to his attorney‘s busy schedule. At the

hearing, his attorney ―represented that she had made a

mistake when she failed to complete an additional step in the

computer process in her office,‖ which meant that ―her staff

never received the instructions to perfect an appeal.‖ Id. In

turn, this attorney provided support for her representation

―with a screen shot of the computer message.‖ Id. The

District Court also acknowledged that the ―timing of the Rule

4 motion is consistent with the defendant‘s suspicion [that

Ragguette never intended to take an appeal and that his

attorney decided to file one in retaliation for Premier‘s fee

proceeding],‖ but it then added that there was no evidence to

confirm this suspicion. Id. Therefore, the District Court

found that the failure to file the notice of appeal was caused

by attorney ―inadvertence.‖ Id. It then stated that:

The delay, measured at the time Ragguette

filed his motion, was twenty-nine days, but

within the time for filing the Rule 4 motion.

His attorney stated that only when she was

preparing for the hearing on the motion for

attorney‘s fees did she realize that the appeal

had not been taken. She then sought advice on

how to remediate her failure. There is no

indication that she purposefully waited until the

penultimate day to file the motion. Under the

circumstances, the delay was not inordinate.

14

Nor was it in bad faith. The defendant argues

that it will be prejudiced by the passage of time

because witnesses have become unavailable and

memories are fading. It also complains about

the significant costs it has expended since the

entry of judgment in its favor and will incur in

the future. The first concern regarding the

witnesses is not compelling. Ragguette seeks

leave to appeal. No witnesses are necessary on

appeal. The record is closed. In the event

Ragguette‘s appeal is denied, there will be no

need for witnesses. On the other hand, if he

prevails, witnesses will be necessary at a trial.

The defendant would face either situation had

Ragguette filed a timely appeal. Nor is there

evidence that defendant has incurred any

significant costs since the entry of judgment, or

that it will incur significant future costs

connected to this motion. Again, at this point,

any delay beyond the twenty-nine days was not

Ragguette‘s fault. Moreover, there is no

demonstration of actual harm to the defendant

as a result of the late filing.

Id. at *1.

Pursuant to the District Court‘s order granting his Rule

4(a)(5) motion, Ragguette filed, on June 8, 2011, a notice of

appeal with respect to the order granting summary judgment.

Premier likewise appealed from the District Court‘s Rule

4(a)(5) order itself, which this Court has treated as a cross-

15

appeal.

II.

The District Court had jurisdiction over this

employment case pursuant to 28 U.S.C. §§ 1331 and 1367.

As we explain in more detail in Section III, infra, we must

dismiss Ragguette‘s appeal because of the absence of

appellate jurisdiction.

It is uncontested that this Court generally reviews a

district court‘s decision whether or not to grant an extension

of time to file a notice of appeal for an abuse of discretion.

See, e.g., In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143,

153 (3d Cir. 2005). The district court abuses its discretion if

its decision rests upon a clearly erroneous finding of fact, an

errant conclusion of law, or the improper application of law to

fact. See, e.g., In re Cendant Corp. Prides Litig., 233 F.3d

188, 192 (3d Cir. 2000). ―An abuse of discretion may also

occur when ‗no reasonable person would adopt the district

court‘s view.‘‖ Id. (quoting Oddi v. Ford Motor Co., 234

F.3d 136, 146 (3d Cir. 2000)). ―Finally, ‗we will not interfere

with the [D]istrict [C]ourt‘s exercise of discretion ―unless

there is a definite and firm conviction that the court . . .

committed a clear error of judgment in the conclusion it

reached upon a weighing of the relevant factors.‖‘‖ Id.

(quoting same).

III.

28 U.S.C. § 2107(a) states that: ―Except as otherwise

provided in this section, no appeal shall bring any judgment,

16

order or decree in an action, suit or proceeding of a civil

nature before a court of appeals for review unless notice of

appeal is filed, within thirty days after the entry of such

judgment, order or decree.‖ Pursuant to this statutory

provision, Federal Rule of Appellate Procedure 4(a)(1)(A)

provides that, ―[i]n 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.‖ The

Supreme Court has determined that ―the timely filing of a

notice of appeal in a civil case is a jurisdictional

requirement.‖ Bowles v. Russell, 551 U.S. 205, 214 (2007).

Ragguette was required to file a notice of appeal

within the applicable 30-day time period following the

January 5, 2010 entry of the order granting Premier‘s motion

for summary judgment. In other words, he had to file his

notice of appeal on or before February 4, 2010. He clearly

failed to do so.

However, the district courts do ―have limited authority

to grant an extension of the 30-day time period.‖ Id. at 208.

28 U.S.C. § 2107(c) 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.‖ Federal Rule of Appellate Procedure 4(a)(5)

authorizes a party to file such a ―Motion for Extension of

Time.‖ This rule currently provides that:

(A) The district court may extend the time to

file a notice of appeal if:

17

(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.

(B) A motion filed before the expiration of the

time prescribed in Rule 4(a)(1) or (3) may be ex

parte unless the court requires otherwise. If the

motion is filed after the expiration of the

prescribed time, notice must be given to the

other parties in accordance with local rules.

(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.

Ragguette filed his motion on Friday, March 5, 2010, which

was 59 days after the entry of the order. Because the 60th

day was a Saturday, he actually had until the next business

day, Monday, March 8, 2010, to file his Rule 4(a)(5) motion.

See, e.g., Fed. R. App. P. 26(a)(1)(C). In any case, Ragguette

thereby ―filed a timely motion for an order granting an

extension of time to file a notice of appeal under Fed. R. App.

P. 4(a)(5).‖ Ragguette, 424 F. App‘x at 155 (footnote

18

omitted). Because this motion was filed in a timely fashion

(and the ―good cause‖ component of the rule is not at issue

here),2 the basic question now before us is whether or not the

2

The good cause standard ―applies in situations in

which there is no fault – excusable or otherwise.‖ Fed. R.

App. 4 (Advisory Committee‘s Notes on 2002 Amendments).

Courts, including our own, historically held that the ―good

cause‖ language in Rule 4(a)(5) was inapplicable if the

request for the extension was made after the period for filing

a timely notice of appeal expired. See, e.g., Consol.

Freightways Corp. of Del. v. Larson, 827 F.2d 916, 918 n.3

(3d Cir. 1987) (explaining that ―good cause‖ is basis for

extending time to file appeal ―only if the request is made

within the original 30 day period for taking the appeal‖ and

that ―[a]ny request for extension filed after the original period

has run is governed by the excusable neglect standard‖

(citations omitted)); Fed. R. App. P. 4 (Advisory Committee‘s

Notes on 2002 Amendments) (describing ―misunderstanding‖

whereby ―most of the courts of appeals have held that the

good cause standard applies only to motions brought prior to

the expiration of the original deadline‖). The rule was

amended in 2002 to make clear that any that any such

interpretation is mistaken and that ―good cause‖ and

―excusable neglect‖ are separate bases upon which a Rule

4(a)(5) extension can be granted regardless of when the

requesting motion is made. See Fed. R. App. P. 4 (Advisory

Committee‘s Notes on 2002 Amendments) (―[A] motion for

an extension filed during the 30 days following the expiration

of the original deadline may be granted if the movant shows

either excusable neglect or good cause.‖).

19

District Court abused its discretion by finding that Ragguette

(and Rohn) established ―excusable neglect‖ under Rule

4(a)(5). We must answer this question in the affirmative.

In our previous ruling in this case, we turned to the

factors identified by the Supreme Court in Pioneer Investment

Services Co. v. Brunswick Associates Limited Partnership,

507 U.S. 380 (1993). The Court considered the meaning of

the term ―excusable neglect‖ in the specific context of a

bankruptcy rule permitting a late filing of a proof of claim by

a creditor if the failure to comply with the deadline (or ―bar

date‖) was the result of excusable neglect. Id. at 382-83.

Most significantly, it emphasized that the whole notion of

excusable neglect implicates an equitable inquiry and thereby

went on to provide a number of factors to be taken into

account in this analysis:

This leaves, of course, the Rule‘s

requirement that the party‘s neglect of the bar

date be ―excusable.‖ It is this requirement that

we believe will deter creditors or other parties

from freely ignoring court-ordered deadlines in

the hopes of winning a permissive reprieve

under Rule 9006(b)(1). With regard to

determining whether a party‘s neglect of a

deadline is excusable, we are in substantial

agreement with the factors identified by the

Court of Appeals. Because Congress has

provided no other guideposts for determining

what sorts of neglect will be considered

―excusable,‖ we conclude that the determination

20

is at bottom an equitable one, taking account of

all relevant circumstances surrounding the

party‘s omission. These include, as the Court

of Appeals found, the danger of prejudice to the

debtor, the length of the delay and its potential

impact on 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.

Id. at 395 (footnotes omitted) (citations omitted). ―Although

inadvertence, ignorance of the rules, or mistakes construing

the rules do not usually constitute ‗excusable‘ neglect, it is

clear that ‗excusable neglect‘ under [Federal Rule of Civil

Procedure] 6(b) [allowing district courts to enlarge the period

of time] 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). On

the other hand, the neglect of both the party as well as the

party‘s own attorney must be taken into account, and the

Pioneer Court accordingly rejected the circuit court‘s

suggestion that it would be improper to penalize a party for

the omissions of counsel. Id. at 396-97.

The Supreme Court noted that the debtor did not

challenge the bankruptcy court‘s findings concerning the

creditors‘ good faith and the absence of any danger of

prejudice to the debtor or of disruption to efficient judicial

administration. Id. at 397-98. It further indicated that it was

not inclined to unsettle factual findings entered by a

bankruptcy court and upheld by both the district and circuit

21

courts on appeal. Id. In fact, the bankruptcy court observed

that the debtor‘s reorganization plan had taken into account

the late claims. Id. In the absence of any evidence of

prejudice, disruption, or bad faith, ―the unusual form of notice

[of the bar date] employed in this case requires a finding that

the neglect of respondents‘ counsel was, under all the

circumstances, ‗excusable.‘‖ Id. at 398-99. The Pioneer

Court also noted that counsel was still ―remiss in failing to

apprehend the notice,‖ and it accorded ―little weight to the

fact that counsel was experiencing upheaval in his law

practice at the time of the bar date‖ in assessing his

―culpability.‖ Id. at 398.

We have applied Pioneer‘s equitable approach in a

variety of circumstances, including proceedings under Rule

4(a)(5). See, e.g., In re Diet Drugs Prods. Liab. Litig., 401

F.3d 143, 153-54 (3d Cir. 2005). However, even prior to the

Supreme Court‘s opinion, we addressed at some length the

―excusable neglect‖ concept in the specific context of a

motion for an extension of time to file a notice of appeal

pursuant to Rule 4(a)(5).

In Consolidated Freightways Corp. of Del. v. Larson,

827 F.2d 916 (1987), the Pennsylvania Attorney General‘s

Office prepared a notice of appeal in a Middle District of

Pennsylvania case on December 18, 1986, one day before the

30-day limit for filing a notice of appeal expired. Id. at 917.

However, the notice of appeal incorrectly identified the

district as the Eastern District of Pennsylvania. Id. Instead of

being hand delivered to the Middle District Clerk‘s Office in

Harrisburg (which was actually adjacent to the Attorney

22

General‘s Office), it was mailed to the Eastern District

Clerk‘s Office (which received the document on December

22, 1986 and then forwarded it to the Middle District, where

it arrived on December 24, 1986). Id. When notified by the

Third Circuit Clerk‘s Office of a possible procedural defect,

counsel immediately applied for a 5-day extension of time.

Id. at 917-18. The district court denied this motion, but we

concluded that ―the district court erred as a matter of law in

its rigid application of 4(a)(5).‖ Id. at 918.

Rejecting the district court‘s attempt to establish a per

se standard, we emphasized that the rule ―requires a case-by-

case analysis‖ as well as specific findings by the district court

regarding ―the reasons underlying counsel‘s inadvertence.‖

Id. at 919. Noting the existence of ―a qualitative distinction

between inadvertence which occurs despite counsel‘s

affirmative efforts to comply and inadvertence which results

from counsel‘s lack of diligence,‖ we went on to provide a

non-exclusive list of factors to guide the district court‘s

exercise of discretion:

Although every case must be examined

on an ad hoc basis and it is impossible to

compose an exhaustive list of factors relevant to

a determination of whether excusable neglect

has occurred, a thoughtful analysis of this issue

in a particular context will, at a minimum,

require a weighing and balancing of the

following factors: (1) whether the inadvertence

reflects professional incompetence such as

ignorance of the rules of procedure, Campbell

23

v. Bowlin, 724 F.2d 484 (5th Cir. 1984) (failure

to read rules of procedure not excusable); (2)

whether the asserted inadvertence reflects an

easily manufactured excuse incapable of

verification by the court, Airline Pilots v.

Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.

1978) (mistake in diarying counsel‘s calendar

not excusable); (3) whether the tardiness results

from counsel‘s failure to provide for a readily

foreseeable consequence, United States v.

Commonwealth of Virginia, 508 F.Supp. 187

(E.D. Va. 1981) (failure to arrange coverage

during attorney‘s vacation which encompassed

end of appeal period not excusable); (4)

whether the inadvertence reflects a complete

lack of diligence, Reinsurance Co. of America,

Inc. v. Administratia, 808 F.2d 1249 (7th Cir.

1987); or (5) whether the court is satisfied that

the inadvertence resulted despite counsel‘s

substantial good faith efforts toward

compliance.

Id. at 919.

We then determined, inter alia, that: (1) the attorney‘s

mistake was not the result of professional incompetence; (2)

he was not attempting to create some sort of facile excuse to

extend the time to appeal and, on the contrary, gained nothing

from his error; (3) this type of human error, though avoidable,

was not readily foreseeable; and (4) the attorney otherwise

acted with due (if not perfect) diligence and in good faith in

24

attempting to comply with Rule 4(a)(5) (including, among

other things, drafting the notice of appeal within the 30-day

limit, serving the notice of appeal on opposing counsel in a

timely fashion, and then expeditiously filing a motion for an

extension of time). Id. at 919-20. ―This court interprets Rule

4(a)(5) to require a finding of excusable neglect in those

instances where the court, after weighing the relevant

considerations is satisfied that counsel has exhibited

substantial diligence, professional competence and has acted

in good faith to conform his or her conduct in accordance

with the rule, but as a result of some minor neglect,

compliance was not achieved.‖ Id. at 920. While

emphasizing that the mistake there could have been detected

by careful proofreading, we believed that even the most

diligent attorneys are subject to these kinds of common

human errors and, in particular, do not need to be reminded to

address their mail accurately or to caption their cases

properly. Id. Even though the district court‘s approach might

have effectively deterred incompetence or callous disregard

for the rules in some circumstances, it would serve ―little

deterrent purpose‖ in the context of human errors that are

―not readily capable of regulatory control.‖ Id. We further

noted that, ―[w]here as here the delay was minimal, and

where the court has determined that the delay was not the

result of any bad faith but rather occurred despite counsel‘s

substantially diligent efforts at compliance, the judicial

interest in deciding cases on the merits outweighs the interests

in finality.‖ Id. However, we also acknowledged that our

opinion ―does not require the absolution of any and all

clerical errors committed by counsel as excusable neglect,‖

and we were confident that ―[t]he threshold requirement of

25

establishing substantial good faith efforts to comply readily

eliminates the most common errors from the excusable

neglect analysis.‖ Id. at 921. Declining to hold that the

failure to proofread a caption must be deemed to be

inexcusable in each and every case, we held that such a

failure was excusable given the factual context presented. Id.

We agree with Premier that the factors identified in

Consolidated should still be considered in applying the

overall approach subsequently set forth by the Supreme Court

in Pioneer. In fact, we actually cited our Consolidated

opinion with approval in our prior ruling in this case vacating

the District Court‘s order and remanding for further

proceedings. See Ragguette, 424 F. App‘x at 156.

Furthermore, our reasoning in Consolidated essentially

anticipated the approach taken by the Supreme Court itself,

and we note that the Pioneer Court even acknowledged our

Consolidated opinion as an example of a circuit court

adopting ―a more flexible approach,‖ Pioneer, 507 U.S. at 387

n.3. It therefore is not surprising that we have continued to

cite to—and quote with approval from—Consolidated as well

as our subsequent decision in Dominic v. Hess Oil V.I. Corp.,

841 F.2d 513, 517 (3d Cir. 1988) (turning, in service of

process context, to five express factors identified in

Consolidated as well as sixth factor for ―whether the

enlargement of time will prejudice the opposing party‖). For

instance, we indicated that ―[t]hese six factors, announced in

Dominic before Pioneer was decided, present a more specific

application of the general considerations later announced by

the Supreme Court in Pioneer.‖ In re Orthopedic Bone Screw

Prods. Liab. Litig., 246 F.3d 315, 323 (3d Cir. 2001). In

26

other words, ―the Dominic factors that were not restated in

Pioneer were instead subsumed in the more general

consideration of ‗reason for the delay.‘‖ Id. (quoting In re

Cendant Corp. Prides Litig., 233 F.3d 188, 196 n.8 (3d Cir.

2000)); see also, e.g., Cendant, 233 F.3d at 197 n.8

(―Additionally, the District Court mentioned the three factors

we identified in a case predating Pioneer, Dominic v. Hess

Oil V.I., 841 F.2d at 517 (inadvertence reflecting professional

incompetence, excuse incapable of verification, complete lack

of diligence), though these are arguably integrated within the

fourth Pioneer factor, ‗reason for the delay.‘‖).

Ragguette, however, contends that, because Premier

had argued in the prior appeal in this case that the evidence

was legally insufficient to show excusable neglect, this Court

necessarily determined in its prior ruling that this evidence

was sufficient for the District Court to rule in his favor.

Simply put, Ragguette is reading too much into our prior

ruling. We merely vacated the District Court‘s denial and

remanded for further proceedings because ―the District Court

disposed of Ragguette‘s motion ‗without an opinion, without

a reason, and more importantly, without reference to the

Pioneer four-factor balancing standard.‖ Ragguette, 424 F.

App‘x at 157 (quoting Diet Drugs, 401 F.3d at 154). It is

now our task to ascertain whether the District Court

appropriately exercised its discretion by finding that ―the

27

neglect at issue in this case was excusable under the Pioneer

standard.‖3 Id. (footnote omitted).

3

We further note that Premier argues at some length

that neither Rohn nor her client ever really intended to pursue

an appeal, at least before the 30-day period to file a notice of

appeal had already expired. In fact, it vigorously attacks

Rohn‘s own motivations, suggesting, for instance, that

―counsel for Ragguette appeared more concerned with

avoiding fees and costs being assessed against her.‖

(Premier‘s Brief at 26.) Based, among other things, on the

screen shot, the annotated memorandum opinion, and the

subsequent e-mail exchange between Rohn and Cameron, it

appears that a prior intention to pursue an appeal did exist in

this case. We recognize that that ―the timing of the Rule 4

motion is consistent with the defendant‘s suspicion.‖

Ragguette, 2011 WL 2359920, at *1. Likewise, Rohn‘s

return of documents to Ragguette is suspicious given that

such documents would be useful for the appeal that she

professed she intended to file. Nevertheless, we believe that

the District Court did not abuse its discretion by finding that

there was ―no evidence to confirm‖ Premier‘s suspicion that

Rohn was acting in a retaliatory manner. Id.

28

Premier also argues ―that the absence of a

notice of appeal within 60 days is a factor in the Pioneer test

as it pertains to the length of the delay, the reason for the

delay and whether counsel acted in good faith and the

prejudice to Premier for the delay.‖ (Premier‘s Brief at 26.)

For instance, Premier asserts that the delay at issue here ―was

from January 5, 2010 to June 8, 2011.‖ (Id. at 30.) While

these kinds of considerations do not appear to be totally

irrelevant to the Pioneer inquiry, we note that Premier itself

acknowledges that this Court ―has already ruled that for the

purpose of the motion for extension of time a notice of appeal

is not required within the 60 days.‖ (Id. at 26.) Observing

that any subsequent delay was largely caused by the judicial

proceeding itself, the District Court appropriately focused on

―the circumstances as they existed on March 2, 2010, when

the plaintiff filed his Rule 4(a)(5) motion.‖ Ragguette, 2011

WL 2359920, at *1.

29

We begin, like the District Court, with the ―reason for

the delay‖ factor. We agree with Premier that the District

Court abused its discretion in its evaluation of this particular

factor. We accordingly must reject Ragguette‘s theory that

there was a reasonable explanation for the delay and that this

delay resulted from various circumstances beyond the control

of his counsel. Simply put, it cannot be said that Ragguette‘s

attorney ―has exhibited substantial diligence, [and]

professional competence, . . . but as the result of some minor

neglect, compliance was not achieved.‖ Consolidated, 827

F.2d at 920. In addition, Ragguette‘s counsel clearly ―fail[ed]

to provide for . . . readily foreseeable consequence[s].‖ Id. at

919 (citations omitted).

Because we ultimately conclude that the District

Court abused its discretion by finding that Ragguette

established excusable neglect, we need not—and do not

reach—the various evidentiary challenges raised by Premier

in its appeal (i.e., challenging the unsworn statements made

by Rohn in the motion papers as well as at the hearing itself).

On the other hand, we do reject Ragguette‘s theory that the

Rohn-Cameron e-mail chain was covered by the attorney-

client privilege, protected by the attorney work product

doctrine, and had been obtained pursuant to an improper

order issued by the District Court in conjunction with a

consolidated recusal motion. We note that, among other

things, Ragguette did not object to the submission of these

documents to the District Court in connection with his Rule

4(a)(5) motion, and, on the contrary, Rohn actually relied on

this documentation at the Rule 4(a)(5) hearing.

30

Initially, the District Court found that the failure to file

the notice of appeal was caused by attorney inadvertence—

specifically Rohn‘s own failure ―to complete an additional

step in the computer process in her office,‖ which meant that

―her staff never received the instructions to perfect an

appeal.‖ Ragguette, 2011 WL 2359920, at *1. We add that it

appears highly doubtful that the firm‘s relatively new motions

or appellate attorney would have understood that she was to

have prepared and filed a notice of appeal based on the

following cursory comment on the annotated memorandum

opinion: ―*Scan in as ‗thoughts Re appeal‘.‖ (A357.) In

fact, the associate apparently did exactly what the comment

told her to do—she had the document scanned. It is also

unclear when exactly Cameron left the firm and how long her

replacement had been working there by the time the notice of

appeal had to be filed. In any case, we believe that a

reasonably competent attorney would have exercised more

supervision and control over a purportedly new and

inexperienced subordinate. Rohn, at the very least, should

have done more than make a number of vague annotations on

the district court‘s ruling and should have anticipated that a

relatively new employee would need more direction. We also

are troubled by the fact that Rohn essentially and rather

conveniently sought to shift at least some of the blame from

herself to another person (who actually was no longer with

the firm by the time of the Rule 4(a)(5) hearing, did not

submit any declaration in support of the motion, and did not

appear at the hearing itself).

Rohn likewise acknowledged that she personally failed

to create the requisite ―computer task‖ as per her firm‘s usual

31

practices. She thereby clearly carried at least partial

responsibility for the breakdown in her firm‘s internal

procedures. In fact, the failure to create the critical computer

task meant that this system was never really triggered in the

first place.

We add that the firm‘s own procedures had some

serious deficiencies of their own. As noted above, the proper

completion of a computer task was evidently necessary to

trigger this computer tracking system in the first place.

Turning to the more significant matter of the ECF system, we

do acknowledge that attorneys, especially well-established

lawyers like Rohn, could have difficulties adjusting to this

mechanism of electronic case filing (as well as other

computer procedures). However, it is also undisputed that

Rohn herself had previously registered as an ECF user

sometime before the beginning of 2010. Rohn (or at least

someone in her office using her ECF account) has actually

filed numerous documents in this heavily litigated case via

the ECF system since September 2007. If a notice of appeal

had actually been filed (as Rohn evidently believed it had

been), a notice of such a filing would have immediately been

sent via e-mail to any and all attorneys who had previously

entered an appearance in the District Court proceeding.

Accordingly, Rohn should have known that no notice of

appeal had been filed because neither Rohn nor any other

attorneys from her firm who had entered an appearance in this

case ever received any notice of such a filing. Having not

received such a notice, any reasonably competent attorney

would have looked into whether a notice of appeal had been

32

properly filed—especially where such a critical task had been

assigned to a relatively new subordinate.

At the Rule 4(a)(5) hearing, Rohn actually

acknowledged that ―all the ECF filings in my office, even

directed to me internally through technology, go to the

attorney who is actually in charge of monitoring those,‖ and

that Rohn herself ―wouldn‘t have gotten an ECF back.‖

(A440.) At the very least, we believe that such an

arrangement was highly problematic. In particular, a

reasonably competent attorney who did not personally receive

or otherwise look at ECF notices would have to set up some

sort of additional method of keeping track of filings,

especially those filings submitted under her own ECF account

as well as critical filings like a notice of appeal. Such an

attorney would at least attempt to make sure that a notice of

appeal had been filed within the applicable 30-day period by,

for example, simply asking the subordinate whether—and

when—she had filed this critical document.

In fact, we previously turned to the ECF filing system

as a basis for rejecting a claim of excusable neglect. In Nara

v. Frank, 488 F.3d 187 (3d Cir. 2007), we concluded that ―the

Commonwealth‘s overall negligence in handling the [28

U.S.C. § 2254 habeas] matter precludes us from finding

‗excusable neglect‘‖ under Federal Rule of Civil Procedure

60(b) with respect to the Commonwealth‘s failure to file

timely objections to the magistrate judge‘s report and

recommendation, id. at 194. We noted, among other things,

that: ―[A]ttorneys practicing in the Western District of

Pennsylvania were under a standing order to register with the

33

Case Management/Electronic Case Files (CM/ECF) system

by July 1, 2005. If the Commonwealth‘s attorneys had

complied with that order, they would have received

immediate electronic notification that the Magistrate Judge

had issued the R & R and could have accessed it by hyper-

link.‖ Id. (footnotes omitted). In turn, ―[t]he

Commonwealth‘s Attorneys based in Harrisburg were

required to register in the Middle District of Pennsylvania in

2003.‖ Id. at 194 n.12 (citation omitted). Because of the lack

of excusable neglect, we proceeded to apply a plain error

standard of review. Id. at 193-97.

It is well established that a busy caseload generally

does not constitute a basis for a finding of excusable neglect.

See, e.g., Pedereaux v. Doe, 767 F.2d 50, 52 (3d Cir. 1985)

(―That counsel spent much of the latter period preparing for

the trial of other matters does not excuse the failure to attend

to the insubstantial task of filing a notice of appeal.‖).

Ragguette accordingly denies ever advancing such a theory in

the first place. But he also continues to highlight his

counsel‘s busy schedule during the relevant time period. For

example, Rohn raised the issue of her own caseload at the

hearing, purportedly in order to provide an explanation as to

why she would not necessarily have seen a notice of appeal

before its filing and why she would not have known that no

such notice had been prepared and filed. We believe that

Ragguette‘s attorney thereby attempted to draw too fine of a

distinction. Simply put, the busy caseload was essentially

offered as an ―excuse‖ for ―the failure to attend to the

insubstantial task of filing a notice of appeal.‖ Id. We also

believe that a reasonably competent attorney would have

34

better managed her own caseload and would have done more

to make sure that the critical task of properly filing a notice of

appeal was completed despite how busy she may have been at

the time.

We likewise determine that Rohn clearly failed to

exercise reasonable diligence in uncovering the fact that no

notice of appeal had been filed and then bringing this mistake

to the attention of the opposing party and the District Court.

This Court previously rejected the ―contention that Rule

4(a)(5) provides an absolute 30 day grace period‖ and held

that ―‗excusable neglect‘ must be shown up to the actual time

the motion to extend is filed.‖ Id. at 51. ―It simply is not

overly burdensome to require a putative appellant, who has

already missed the 30 day . . . 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.‖ Id. at 52. In this case, a reasonably diligent attorney

certainly could have—and should have—discovered the fact

that no notice of appeal had been filed (or at least taken steps

to investigate the matter) when: (1) Premier filed its original

fee motion on January 13, 2010; (2) Ragguette‘s opposition to

this fee motion was filed (via the ECF system under Rohn‘s

own account) on January 28, 2010; (3) the District Court

entered an order on February 8, 2010 scheduling a hearing on

the fee motion for February 23, 2010; (4) on February 24,

2010, the District Court rescheduled the fee hearing for

March 1, 2010; (5) no ECF notice was ever received

indicating the filing of a notice of appeal; (6) no ECF notices

were ever received with respect to a number of documents

sent out by the District Court‘s Clerk (a receipt for payment

35

of the requisite filing fee for an appeal) as well as the Third

Circuit‘s Clerk (the initial case opening letter and the

assignment of the case caption) immediately after the filing of

a notice of appeal; and (7) similarly, no ECF notices (or hard

copies of the documents themselves) were ever received

indicating that the parties filed various documents due shortly

after the commencement of an appeal (i.e., entry of

appearance, disclosure statement, civil appeal information

statement, concise summary of the case, and transcript

purchase order).4 Yet Rohn purportedly did not discover that

4

In passing, Ragguette contends that there was no

evidence in the record to support Premier‘s representations

that Rohn should have received ECF notices for various

filings and that, in fact, the record actually established the

contrary. We, however, must reject his assertions given the

well-established nature of the procedures at issue here. For

instance, we observe that the docket sheet for Ragguette‘s

successful appeal from the District Court‘s initial denial of his

Rule 4(a)(5) motion indicated that the following documents

were filed (and served) shortly after the May 20, 2010 filing

of his notice of appeal via Rohn‘s ECF account: (1) on May

21, 2010, the receipt for payment of the appellate filing fee;

(2) on May 26, 2010, the initial case opening letter, the

assignment of the case caption, and an order advising the

parties of the Court‘s practice of holding Virgin Islands

sittings twice a year as well as tentatively listing this case for

May 2011; (3) on May 28, 2010, an entry of appearance from

Premier‘s counsel and Premier‘s disclosure statement; (4) on

June 11, 2010, a follow-up letter from the Third Circuit

Clerk‘s Office to Rohn requesting the submission of an entry

36

no notice of appeal had been filed until her preparation for the

March 1, 2010 fee hearing—approximately a month after the

deadline for filing a notice of appeal and approximately two

months after the District Court‘s summary judgment order.

Nevertheless, she still did not even mention the mistake or the

possibility of an appeal at the hearing conducted on March 1,

2010. Even though she claimed that that she did do so

because she wanted to obtain verification, we must reject

such an excuse given her prior—and extensive—lack of due

diligence. We also note that a reasonably competent

attorney—having just discovered that a notice of appeal had

not been filed almost a month after the deadline had already

expired and immediately before a previously scheduled

hearing—would have exercised more diligence in obtaining

verification prior to the hearing and would have then brought

this critical matter to the immediate attention of opposing

counsel and the judge.

We thereby determine that the District Court erred in

its assessment of the ―reason for the delay‖ factor. Contrary

of appearance form, a civil case information statement, a

concise summary of the case, and a transcript purchase order

on or before June 25, 2010; and (5) on June 25, 2010, an

entry of appearance from Rohn as well as a civil case

information statement, concise summary of the case,

disclosure statement, and transcript purchase order. Again,

we emphasize that the fact that the ECF filings purportedly

went to Rohn‘s new motions attorney—and were not

otherwise received or monitored by Rohn herself—weighs

against any finding of excusable neglect.

37

to the District Court‘s characterization, this factor strongly

weighs against any finding of excusable neglect. We,

however, must still address the District Court‘s assessment of

the remaining Pioneer factors. ―Under Pioneer, a court must

take into account all relevant circumstances surrounding a

party‘s failure to file, and failing to disprove ‗reasonable

control‘ is not necessarily fatal to a petitioner‘s request for

relief. To state it differently, the ‗control‘ factor does not

necessarily trump all the other relevant factors.‖ George

Harms Constr. Co. v. Chao, 371 F.3d 156, 164 (3d Cir. 2004).

Therefore, while prejudice to the opposing party, disruption

of efficient judicial administration, and bad faith are

frequently absent, the mere fact that ―those factors may nearly

always favor‖ the moving party does not mean that they can

be ignored. Id.

We nevertheless must conclude that the other Pioneer

factors, at best, provide only minimal support for the District

Court‘s ―excusable neglect‖ finding. Accordingly, they are

clearly insufficient to outweigh the ―reason for the delay‖

factor.

It is well established that, as Ragguette points out, ―a

finding of prejudice should be a conclusion based on facts in

evidence.‖ In re O‘Brien Envt‘l Energy, Inc., 188 F.3d 116,

127 (3d Cir. 1999). In other words, prejudice does not consist

of ―an imagined or hypothetical harm,‖ and, on the contrary,

prejudice generally occurs where, for instance, the opposing

party has lost evidence or placed substantial reliance on the

judgment or there is an increased potential for fraud or

collusion. Id. The District Court appropriately noted that

38

Premier would have faced the prospect of a trial even if its

opponent had filed a notice of appeal within the applicable

30-day period. ―Nor is there evidence that defendant has

incurred any significant costs since the entry of judgment, or

that it will incur significant costs connected to this motion.‖

Ragguette, 2011 WL 2359920, at *1. The District Court,

at the very least, ultimately accorded too much weight to this

particular factor in the current circumstances. In particular,

Premier points out that it was certain there would be no

appeal once the 30-day period to file a notice of appeal had

expired and no notice of appeal (or Rule 4(a)(5) motion) had

been either filed or served within this 30-day period. Viewed

in isolation, this contention overlooks a number of well-

established mechanisms available to pursue an appeal even in

absence of an otherwise timely notice of appeal, including

Rule 4(a)(5) itself. We, however, are not confronted here

with the more typical situation of an appellant who, while still

managing to serve the notice of appeal on the opposing party

in a timely fashion, failed to file a notice of appeal with the

district court within the generally applicable 30-day period

due to some sort of unfortunate oversight. As we have

already discussed in some detail, Rohn never indicated to

opposing counsel or the District Court the possibility of an

appeal until the Rule 4(a)(5) motion was filed on March 5,

2010. In fact, a fee hearing was actually held before the

District Court only days before the expiration of the 60-day

period established by Rule 4(a)(5), and, yet again, not a word

was said about any possible appeal. Given these

circumstances, Premier could have been led to believe that its

adversary did not intend to appeal from the District Court‘s

order granting its summary judgment motion and that the only

39

remaining issue in the litigation was the subsidiary question

of fees and costs.

We reach the same basic conclusion with respect to the

―length of the delay and its potential impact on the judicial

proceedings‖ factor. The length of the delay must be

examined in ―absolute terms‖ or in an ―absolute sense,‖

meaning that the extent of the delay should be considered in

isolation. O‘Brien, 188 F.3d at 129-30; see also, e.g.,

Orthopedic Bone Screw, 246 F.3d at 325. The District Court

reasonably observed that ―[t]he delay, measured at the time

Ragguette filed his motion, was twenty-nine days, but within

the time for filing the Rule 4 motion.‖ Ragguette, 2011 WL

2359920, at *1. While it appropriately found that such a

delay ―was not inordinate,‖ id., this finding must still be

weighed against the other Pioneer factors. We also cannot

overlook the fact that Ragguette filed his motion on Friday,

March 5, 2010—the 59th day of the 60-day period. He only

had one more business day—Monday, March 8, 2010—left to

seek relief under Rule 4(a)(5). In other words, this is not a

case where a party filed the Rule 4(a)(5) motion within the

original 30-day period for filing a notice of appeal or even

just a few days after this initial period had expired.

Finally, we agree with the District Court that neither

Ragguette nor Rohn appeared to act in bad faith, at least in

the specific sense of engaging in outright misconduct or

inequitable behavior. Nevertheless, we still cannot overlook

the manifest lack of diligence on the part of Ragguette‘s

attorney and, in particular, the multiple opportunities she had

to discover the failure to file a notice of appeal and then to

40

attempt to remedy such a clear and serious mistake. Most

significantly, even though Rohn finally discovered what

happened when preparing for the March 1, 2010 fee hearing,

she did not even mention this discovery or a possible appeal

at the hearing itself. While her intent to obtain verification

was perhaps understandable, such a justification does not

really carry much weight here, especially given the clear

deficiencies with respect to how Rohn and her firm handled

the filing of a notice of appeal, her lack of due diligence, and

her status as an experienced litigator. Even if there was ―no

reason to believe that [Rohn] ever acted in bad faith,‖ we

cannot conclude that she was ―so careful or vigilant as to

overcome the weight‖ of the ―reason for the delay‖ factor. In

re Am. Classic Voyages Co., 405 F.3d 127, 134 (3d Cir.

2005) (determining that bankruptcy court did not abuse

discretion by finding that failure to file claim by bar date did

not qualify as excusable neglect and also specifically stating

that party‘s care and vigilance were not sufficient to

overcome weight of other factors—especially ―second‖

factor).

In the end, we must conclude that the District Court

abused its discretion. While we acknowledge the deferential

nature of our review, it is clear that the ―reason for the delay‖

factor strongly weighs against any finding of excusable

neglect. It is also clear that the remaining factors, at best,

provide only minimal support for such a finding and thereby

cannot overcome the weight of the ―reason for the delay‖

41

factor.5 In other words, the Court is confronted in this case

with more than the simple and understandable ―failure to

proofread a caption‖ at issue in Consolidated. 827 F.2d at

921. In fact, counsel—unlike her counterpart in

Consolidated—never even managed to draft a notice of

appeal within the applicable 30-day period, and, accordingly,

there was no ―timely service of the Notice of Appeal upon

opposing counsel.‖ Id. at 920. We likewise are not dealing

here with anything comparable to Pioneer‘s ―unusual form of

notice.‖ Pioneer, 507 U.S. at 399.

More broadly, we note that a ruling in favor of

Ragguette in the current circumstances could be read as

condoning and even rewarding otherwise avoidable

mistakes—and even outright incompetence—on the part of

even experienced attorneys. Far from deterring such

mistakes, such a signal could lead to yet more claims of

excusable neglect premised on attorney incompetence in

connection with the critical—yet relatively simple—step of

filing a notice of appeal within the applicable time period for

doing so.

IV.

5

Given this assessment of the Pioneer factors, we need

not—and do not—decide whether a prior panel of our Court

was correct to suggest in dicta that the ―danger of prejudice‖

factor constitutes ―the most important [factor] of all.‖ Diet

Drugs, 401 F.3d at 154.

42

For the foregoing reasons, we determine that the

District Court improvidently granted Ragguette‘s motion for

an extension of time to file a notice of appeal under Federal

Rule of Appellate Procedure 4(a)(5). We accordingly will

dismiss Ragguette‘s appeal for lack of appellate jurisdiction.

43