841 F. 2d 1129 - Millar v. New Zealand Insurance Co Ltd

MEMORANDUM**

Ben and Olive Millar and Fred Smith appeal1 from the district court's denial of their ex parte application to extend the 30-day limit for filing a notice of appeal from the order dismissing their complaint. Appellees New Zealand Insurance Company, Ltd., and New Zealand Insurance Company, Inc. (NZIC), request an award of attorney's fees and double costs as a sanction for appellants' "recklessly unfocused lawyering." Appellees' Opening Brief at 9.

On September 6, 1985, appellants' attorney filed a complaint seeking recovery on an insurance binder allegedly issued by NZIC. On May 6, 1986, the district court entered an order dismissing the action on the basis of forum non conveniens. On June 11, appellants filed a notice of appeal. Recognizing the untimeliness of this notice, on June 16 appellants filed an ex parte application for an extension of time to file the notice of appeal.2 In an affidavit attached to the application, the secretary to appellants' attorney alleged that she had made weekly inquiries as to the status of the case, but that the deputy clerk had not responded to the messages she had left on the clerk's answering machine. On June 9, the secretary finally reached someone in the clerk's office and was told that the order dismissing the action was mailed sometime in May 1986. Appellants claim they did not receive notice of this decision, although the district court's docket sheet indicates that a copy of the order was mailed to appellants' attorney. The district court denied the ex parte application.

A. Initially, we note that the application for an extension of time was defective. Federal Rule of Appellate Procedure 4(a)(5) allows motions for extension of time to be made ex parte only if filed before expiration of the initial period for filing the notice of appeal; motions filed thereafter may only be made with notice to the opposing parties. National Indus. v. Republic Nat'l Life Ins. Co., 677 F.2d 1258, 1263-64 (9th Cir.1982). Appellants' June 16 motion, made nearly two weeks after the time for filing the notice of appeal had expired, was not served on opposing counsel. It was therefore properly dismissed by the district court for failure to comply with Rule 4(a)(5).

In any event, appellants did not make a showing of excusable neglect that would have justified an extension of time to file the notice of appeal. Fed.R.App.P. 4(a)(5). Our standard for excusable neglect is "a ' "strict" ' one," Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir.1986) (quoting Selph v. Council of City of Los Angeles, 593 F.2d 881, 883 (9th Cir.1979)), and an extension is permitted only in " 'extraordinary cases where injustice would otherwise result.' " Oregon v. Champion Int'l Corp., 680 F.2d 1300, 1301 (9th Cir.1982) (quoting In re Estate of Butler's Tire & Battery Co., 592 F.2d 1028, 1034 (9th Cir.1979)). We review the district court's determination that appellants failed to meet this standard for abuse of discretion. Alaska Limestone, 799 F.2d at 1411.

Appellants argue that their lack of notice of the order dismissing the action, coupled with repeated efforts to obtain information concerning the status of the case, constituted excusable neglect. This argument is not persuasive. "A party has an independent duty to keep informed and mere failure of the clerk to notify the parties that judgment has been entered does not provide grounds for excusable neglect or warrant an extension of time." Id. at 1412; see Orange Prod. Credit Ass'n v. Wheeler, No. 86-6426, slip op. 1123, 1129 (9th Cir. Jan. 28, 1988). National Industries, on which appellants rely, is not to the contrary. There, appellants (who delayed filing their notice of appeal in reliance on the trial court's later-vacated finding of excusable neglect) were effectively misled by the district court. 677 F.2d at 1264; see also Orange Prod. Credit Ass'n, No. 86-6426, at 1129 (finding excusable neglect where "the clerk failed to give notice and then told counsel the order had not been entered"). Here, there were no misstatements by the court; had appellants' counsel checked the docket sheet any time during May, he would have learned of the case's status and of the need to file a notice of appeal. We cannot say that the district court abused its discretion by denying the application.

B. NZIC requests attorney's fees and double costs under 28 U.S.C. Sec. 1912 (1982) and Federal Rule of Appellate Procedure 38. We may award such sanctions if the result is obvious or appellant's arguments are wholly without merit. See, e.g., In re Akros Installations, Inc., 834 F.2d 1526, 1533 (9th Cir.1987); Kelley v. International Bhd. of Elec. Workers, 803 F.2d 516, 519 (9th Cir.1986). While we uphold the district court, there are no cases precisely on point. The clerk's alleged failure to return telephone calls might have been deemed misleading under National Industries. Nor is there any indication that the appeal was presented in bad faith. We therefore deny the request for sanctions.

The district court's order denying appellants additional time to file a notice of appeal is AFFIRMED. NZIC's request for attorney's fees and double costs is DENIED.