# Redfield v. Continental Casualty Corp.

> Court of Appeals for the Seventh Circuit · May 6, 1987 · 818 F.2d 596

URL: https://www.frixlaw.com/law-library/cases/8950192

## Case

- **Full name:** John H. REDFIELD, Trustee in Bankruptcy of Anthony Cairo v. CONTINENTAL CASUALTY CORP., In the Matter of INTERCONTINENTAL SECURITY CORP., Debtor. Appeal of CONTINENTAL CASUALTY CORP.
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** May 6, 1987
- **Citations:** 818 F.2d 596; 7 Fed. R. Serv. 3d 739
- **Precedential status:** Published
- **Opinion:** Dissent by Coffey
- **Judges:** Coffey, Cummings, Swygert
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8950192

## How later opinions describe it (automated extraction)

- holding that trustee in bankruptcy for owner of property could sue on fire insurance policies despite fact that policies did not name owner as the insured and discussing nature of the land trust (rather than an assignment of a beneficial interest in a land trust)
- finding excusable neglect when court clerk failed to send appellant a copy of the order dismissing the complaint and then filed the original order under the wrong docket number

## Opinion text

COFFEY, Circuit Judge,
dissenting.
The Majority condones an attorney’s careless and unprofessional handling of a case and allows the attorney to escape the consequences of his own negligence under the guise of excusable neglect where the facts clearly establish the absence of any “unique” or “extraordinary” circumstance that might justify such a determination. The attorney had the necessary information he. needed to ascertain the time-frame within which he had to act in order that he might pursue his claim, despite the docketing confusion and the tardiness of the court in serving notice of its dismissing of the complaint on the attorney. Because the doctrine of excusable neglect is not intended to protect attorneys from the consequences of their carelessness, I dissent from that portion of the Majority opinion affirming the district court’s order granting the plaintiff attorney a five-day extension of time in which to file a notice of his appeal.
Plaintiff-appellant Attorney Redfield filed his notice of appeal in this case on May 7, 1985, five days after the deadline for filing the motion had elapsed. The district court entered an order dismissing his complaint with prejudice on April 2, 1985 and under Fed.R.App.P. 4(a)(1), he had 30 days (i.e., until May 2, 1985) to file notice of his intent to appeal. According to Redfield, he learned of the district court’s dismissal of his complaint on April 15,1985 (17 days before the deadline for filing notice of his appeal) but states that somehow he misread the orders in the court’s file so as to believe that the court’s order was entered on April 8, 1985, not April 2, and thus he believed he had until May 8, 1985 to file the notice of appeal. Redfield claims that he noted the incorrect date of the decision (i.e., April 8) because the order in his case was “stuck to” another order in the file that was entered on April 8, 1985. 1 In other words, in spite of this self-serving excuse, the record reflects that on April 15, 1985, Redfield had all the necessary information to enable him to determine the deadline for the filing of his notice of appeal had he carefully examined the court file in a lawyer-like professional manner. 2
*612 The Supreme Court has stated that “It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 , 103 S.Ct. 400, 403 , 74 L.Ed.2d 225 (1982) (quoting Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264 , 98 S.Ct. 556, 561 , 54 L.Ed.2d 521 (1978)) (emphasis added). In holding that the district court did not abuse its discretion in allowing the appellant to file a late notice of appeal of the district court’s dismissal of his complaint, the Majority ignores the well-established policy of statutorily enacted timing limitations such as the one found in Fed.R. App.P. 4(a). In Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415 , 63 S.Ct. 1126, 1128 , 87 L.Ed. 1483 (1943) the Supreme Court stated:
“The purpose of statutes limiting the period of appeal is to set a definite point of time when litigation shall be at end unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant’s demands.”
Compliance with time limitations is important because: “The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 , 103 S.Ct. 400, 402 , 74 L.Ed.2d 225 (1982). 3
This court in a recent case mandated that “ ‘excusable neglect’ was intended to be narrowly construed." Reinsurance Company of America, Inc. v. Administratia Asigurarilor De Stat, 808 F.2d 1249, 1251 (7th Cir.1987) (emphasis added). In Reinsurance Company, despite learning conclusively of the judgment nine days before the filing deadline, the appellant argued it did not learn of the district court’s decision in sufficient time and, in any event, mailed its notice of appeal in a reasonable manner by allowing four days (during the Christmas season) for the notice of appeal to reach the appropriate destination. In analyzing whether there was excusable neglect, this court stated:
“The history of the ‘excusable neglect’ standard ... clearly indicates that, with the exception of ‘extraordinary cases where injustice would otherwise result,’ few circumstances will ordinarily qualify under the excusable neglect rubric. An apparent exception to this otherwise strict application of the 30-day appeal period can be found in a relatively limited number of cases whose facts evidence what the Supreme Court has termed ‘unique circumstances.’ ”
Id. at 1251-52 (footnote omitted) (emphasis added). This court refused to overturn the district court’s denial of an extension of time to file a late notice of appeal taking note of the appellant’s “extraordinarily casual manner.” Id. at 1253 . Although not in so many words, the panel clearly refused to consider the circumstances to be “unique.” In reviewing the decisions of other circuits concerning excusable neglect, I note that an extremely high standard must be met to establish excusable neglect. The First Circuit has required “circumstances that are unique or extraordinary.” Airline Pilots in Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (notice of appeal was mailed late because of mistake by attorney’s secretary as to when the appeal period expired; held not to be unusual or extraordinary circumstances warranting a finding of excusable neglect). The Second Circuit has described the circumstances necessary for a finding of excusable neglect as “unique” or “exceptional” rather than a “run-of-the-mill oversight.” Fase v. Seafarers Welf. & Pension Plan, 574 F.2d 72 (2d Cir.1978) (failure to understand the law or careless omissions do not give rise to a finding of excusable neglect.) The Fifth Circuit has stated “A strict construc *613 tion of Rule 4(a)(1) necessarily and logically compels us to erect a high threshold in our determination of ‘excusable neglect’ under Rule 4(a)(5).” Pellegrino v. Marathon Bank, 640 F.2d 696, 698 (5th Cir.1981). The Ninth Circuit has stated that excusable neglect should only be found in “extraordinary” cases. State of Oregon v. Champion, 680 F.2d 1300 , 1301 (9th Cir.1982) (“inadvertent mistake in addressing [the envelope for] the notice of appeal was not excusable neglect under Fed.R.App.P. 4(a)(5)”). See also Alaska Limestone Corp. v. Hodel, 799 F.2d 1409 (9th Cir. 1986).
Despite the fact that Redfield’s hasty and neglectful examination of the court file fails to measure up to “unique” 4 circumstances, the Majority holds that the district court did not abuse its discretion in granting the appellant an extension of time to file his notice of appeal. The Majority supports its decision on the basis that: (1) there was some confusion as to the correct docket number for Redfield’s case, and (2) Redfield “mistakenly” thought the proper date of the dismissal was April 8 because the dismissal order of April 2 was “stuck to” a minute order of April 8.
Although there may have been some confusion as to the docket number assigned to Redfield’s case after it was consolidated with the similar case involving Continental Casualty which resulted in the district court’s failure to notify Redfield of Judge Leighton’s order dismissing his complaint, Redfield’s affidavit, which as every first-year law student learns, is “a written ... declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it,” Black’s Law Dictionary, 54 (5th ed. 1979), makes clear that he succeeded with little effort in discovering Judge Leighton’s order dismissing his complaint more than two weeks prior to the deadline for filing his notice of appeal. If Redfield really believed that 17 days was an insufficient time to prepare his notice of appeal, he had more than ample opportunity to move for an extension of time had he been representing his client in a professional lawyer-like manner. Conversely, it is interesting to again point out that the record makes clear that Redfield had no trouble filing his response to Continental Causalty’s motion to dismiss within seven days after his case had been transferred to Judge Leighton and docketed under a different number. As Redfield stated in his affidavit:
“Numerous times before and after filing my Brief in Response to the Defendant’s Motion to Dismiss, I inquired with the docket clerks as to what case number of the Brief should possess. After not receiving a satisfactory answer and seeing that the Minute Order was entered in case number 84 C 3266, I filed my Brief in case number 84 C 3266.”
Clearly, the confusion concerning the correct docket number for Redfield’s case did not interfere with Redfield’s ability to learn of motions filed by Continental Casualty or to file responsive pleadings, or to generally prosecute his claim before Judge Leighton. Thus, the docket number confusion appears to be nothing more than a weak attempted after the fact justification for Redfield’s careless inattention to detail when he examined the court file for his case on April 15, 1985.
The Majority further attempts to justify Redfield’s carelessness by accepting Red-field’s incredulous assertion that he filed his notice of appeal five days late because he “mistakenly believed that the order had been docketed on April 8, 1985 rather than April 2, 1985, the correct date, because the order dismissing the complaint was somehow stuck to an order setting a date for a status hearing.” Majority opinion at 602 (emphasis added). On the basis of the decisions of the Supreme Court and the recent decisions of this court, I am not persuaded that Redfield’s inattentiveness as to the dates on the orders in the court file rises to the level of excusable neglect. The Majority holds that Redfield’s mistake as to the correct date of the decision coupled with *614 the clerk’s failure to notify Redfield of the decision supports a finding of excusable neglect. Although the court’s failure to notify Redfield of the order dismissing his complaint might excuse his failure to timely file his notice of appeal had he not learned of the court’s order on his own prior to the deadline for filing the notice, here Redfield had full knowledge of the order in ample time to file his notice but carelessly examined the record and thus incorrectly recorded the date the order was entered. Thus, we cannot say that but for the court’s failure to notify Redfield of Judge Leighton’s order, Redfield would have been apprised of the correct deadline for filing his notice of appeal. Rather, but for Redfield’s hasty and careless examination of the order, he would have properly calculated the deadline for filing his notice of appeal.
To support its finding of excusable neglect, the Majority cites several cases where excusable neglect was found where there was no notice of the entry of judgment and the appellant had made some effort, although unsuccessful, to ascertain the status of his case. But in the cases cited by the Majority, it was not the intervening carelessness of the appellant that was ultimately responsible for the untimely filing of notice or motions. These cases support the well-established principle that excusable neglect should be found only when “unique” or extraordinary circumstances exist. The excusable neglect standard is intended to be “narrowly construed.” See Reinsurance Company of America, Inc. v. Administratia Asigurarilor De Stat, 808 F.2d at 1251 . The Majority has now expanded the scope of excusable neglect to include mere carelessness on the part of an attorney. This is clearly not the intent of Fed.R.Civ.P. 4(a)(5) and is clearly distinguishable from our recent cases finding excusable neglect. For example, in Passarella v. Hilton International Co., 810 F.2d 674 (7th Cir.1987), we found excusable neglect where the defendant had mailed the plaintiffs complaint to its insurance carrier but no answer was filed by the insurance carrier’s attorney because he never received the complaint in the mail nor did he have any knowledge that a complaint had been filed. As a result, default judgment was entered against the defendant. We vacated the default judgment finding excusable neglect since the failure of the insurance carrier’s attorney to answer the complaint was not the result of any careless conduct by the attorney or his client. Here, unlike Passarella , the attorney had all the information required in his possession for him to file a timely notice when he reviewed the court file. The failure of the attorney to note the correct date was the direct result of his own carelessness.
Here, Redfield had been told in open court that a decision would be rendered March 29, 1985. He in fact filed his brief with the proper docket number in response to the appellee’s motion to dismiss and thus he knew the docket number prior to his late filing. Despite evidence to the contrary, see supra, note 2, Redfield claims he first learned of the dismissal on April 15, 1985, when knowing the district court’s decision was overdue, he went to the court and checked the correct file — 84 C 3266. He read the order dismissing his suit but failed to make a copy of it. The Majority states that Redfield “mistakenly” wrote down April 8 rather than April 2 because the order dismissing his complaint was “stuck to” another document dated April 2. These facts do not present a situation wherein the attorney, through some force beyond his control, was unable to correctly determine the deadline for filing his notice of appeal. The facts do not establish that Redfield was without fault in failing to timely file his notice of appeal. These facts do establish that Redfield was careless and inattentive and thus guilty of an unexcusable error. He read the order, but he did not see fit to either make an accurate note of it much less photostat it. He noted a date for the decision but wrote down the wrong date — a careless clerical mistake, something other courts have not allowed to support a finding of excusable neglect. See, e.g., Alaska Limestone Corp. v. Hodel, 799 F.2d 1409 (9th Cir.1986); Airline Pilots in Service of Executive Airlines, Inc., 569 *615 F.2d 1174 (1st Cir.1978). Even though the orders may have been somehow “stuck together,” it is not expecting too much of a trained professional attorney to carefully examine the record and note the caption on the order in recording the date of entry. As an attorney and an officer of the court, Redfield should certainly have understood the importance of obtaining accurate information concerning filing deadlines and the dates of court orders — at least well enough to take the extra five seconds it would have taken to make sure the date he wrote down was correct.
Timing provisions, such as Fed.R.App.P. 4(a), give litigants a reasonable time to file motions, notices of appeal, etc. In Reinsurance Company, we stated “The rationale for insistence upon the timely filing of a notice of appeal is ‘the necessity for providing a precisely ascertainable point of time at which litigation comes to an end.’ ” 808 F.2d at 1253 -54 (citing Files v. City of Rockford, 440 F.2d 811, 814 (7th Cir.1971)). When a time limit expires this should be an end to the litigation. To allow a litigant who misses a statutory filing deadline to file late in the absence of unique circumstances, renders the excusable neglect standard anything but strict and runs contrary to case law.
What we have here, is plainly and simply, inexcusable neglect on the part of an attorney. He was made aware at the February 1 status hearing that the decision would be handed down on March 29. On April 15, or possibly earlier, he learned that the trial court had rendered a decision. Redfield checked the case file on April 15, seventeen days or almost two and one-half weeks before the deadline for his notice of appeal, but now states in his self-serving affidavit that he “mistakenly” wrote down April 8 rather than the correct date of April 2 because the judgment order was “stuck to” the order dated April 8. This type of careless and negligent conduct on the part of a legal professional hardly supports a finding of excusable neglect and is more properly a problem for his insurance carrier, not this court. Excusable neglect should be allowed only when there are unique circumstances which are clearly not present in the instant case. It is unreasonable for this court to expect the district courts to move their calendars if we continue to find excuses for attorneys’ careless handling of their clients’ legal work and at the same time we send out conflicting signals as to what constitutes excusable neglect. Compare Reinsurance Company of America, Inc. v. Administratia Asigurarilor De Stat, 808 F.2d 1249 (7th Cir.1987). I would hold that Judge Duff abused his discretion in granting Redfield an extension to file his notice of appeal. There was inexcusable neglect — careless inattentiveness by a legal professional trained to exercise vigilance and caution in the performance of his responsibilities.
The Majority improperly holds that the district court correctly found excusable neglect was demonstrated for the late filing of the notice of appeal. In effect, the Majority’s decision makes a mockery of statutory time limitations. I would reverse the trial court since Redfield’s neglect amounted to a careless clerical error.
. Redfield initiated the litigation in federal court as an adversary proceeding to a Bankruptcy. After some procedural wrangling the matter was assigned to the district court calendar of Judge Marshall. Continental made a motion dated December 17, 1984 for relatedness to have the litigation transferred to Judge Leighton because it was related to another adversary proceeding which Continental had removed previously from the bankruptcy court. As the Majority notes, there apparently was some confusion as to the docket number for Redfield’s case after his case was consolidated with the other case pending before Judge Leighton. However, Red-field’s affidavit establishes that he knew the new docket number for his case after it had been transferred to Judge Leighton:
"Numerous times before and after filing my Brief in Response to the Defendant’s Motion to Dismiss, I inquired with the docket clerks as to what case number of the Brief should possess. After not receiving a satisfactory answer and seeing that the Minute Order was entered in case number 84 C 3266, I filed by Brief in case number 84 C 3266 [the docket number of the case pending before Judge Leighton].”
Indeed, Redfield had no trouble locating the order dismissing his complaint when he checked the court files on April 15, 1985. Thus, the docket number confusion did not prevent Red-field from ascertaining the status of his case nor the date the order dismissing the complaint was entered. What prevented Redfield from ascertaining the correct date was his own carelessness in examining the court file.
. Redfield claims he did not learn of the court’s dismissal until April 15. Affidavits submitted by Continental demonstrate that he likely knew of the dismissal of his complaint within ten days of the March 29 ruling. Within the ten days following March 29 affidavits establish that Redfield telephoned counsel for Intercontinental Security Corp. to discuss the dismissal. Affidavits of James Stickles and Raymond Gross-man. During this telephone conversation, Red-field broached the subject of the trial court’s dismissal order and said that he did not believe he would pursue an appeal of the dismissal. Stickles’ affidavit relates to a telephone discussion between he and Grossman, counsel for Intercontinental Security Corp. that established that Redfield likely knew of the dismissal order within ten days of March 29, 1985 in view of the fact the attorneys discussed Redfield’s having ten days from March 29 to make a motion for the court to reconsider its dismissal order or to seek to amend its complaint which was dismissed.
. The Second Circuit has stated:
“The purpose behind this time limitation [in Fed.R.App.P. 4(a) ] is to provide a definite point at which, in the absence of a notice of appeal, litigation will come to a close.” Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72 , 75 (2d Cir.1978).
. "Unique" is defined as "being without an equal or equivalent; unparalleled.” The American Heritage Dictionary (2nd Ed. 1982).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8950192. Public record. Not legal advice.