852 F. 2d 571 - Cummings v. Alpha Beta Co

MEMORANDUM**

Lori Rae Cummings appeals the district court's denial of her motion for an extension of time to file a notice of appeal. We affirm.

On August 6, 1986, the district court dismissed Cummings's complaint against her former employer. Cummings neither appealed nor moved for an extension of the time to appeal within the thirty day limitations period provided in Fed.R.App.P. 4(a)(1).

On September 23, 1986, Cummings filed a motion to extend her time for appeal under Federal Rule of Appellate Procedure 4(a)(5). Following a hearing on the motion, the district court held that Cummings had not shown excusable neglect necessary to authorize an extension of time, and denied Cummings's motion. Cummings timely appeals from the denial.

Cummings contends she demonstrated excusable neglect for her failure to file a timely notice of appeal and thus the district court erred in denying her motion for an extension. This court reviews the district court's denial for an abuse of discretion. See Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir.1986).

Rule 4(a) of the Federal Rules of Appellate Procedure requires an appellant in a civil action to file a notice of appeal with the district court within 30 days after the entry of the judgment or order being appealed. Fed.R.App.P. 4(a)(1). The district court may extend this period if: (1) the motion for the extension of time is filed no later than 30 days after the expiration of the original appeal period; and (2) the moving party makes a sufficient showing of excusable neglect for not meeting the original deadline. Fed.R.App.P. 4(a)(5). The standard for determining excusable neglect is a "strict one." Alaska Limestone Corp., 799 F.2d at 1411. It allows an extension of time only in "extraordinary cases where injustice would otherwise result." Id.

Cummings asserts that her failure to file a timely appeal was based on the fact that her counsel's office received the district court's August 5, 1986 dismissal of her action during a time when both her counsel and his secretary were away on leave. She also asserts that the order was inadvertently lost by the substituting clerical personnel and that the order was not brought to her counsel's attention until September 10, 1986. These facts, however, do not establish excusable neglect. This court has clearly held that inadvertent mistake of counsel, including that attributable to office staff, does not constitute excusable neglect. See Alaska Limestone Corp., 799 F.2d at 1411.

Cummings also appears to argue that her case presents "unique circumstances" because her delay in filing was based on her counsel's reliance on communications with the district court. Cummings argues that while her case was under submission, her counsel contacted the court on several occasions in an effort to determine whether a decision had been reached on the motion to dismiss. Because her counsel was told the matter was still under submission approximately one week before the decision was rendered, Cummings insists her counsel was lulled into a false sense of security and, therefore, her failure to file a timely notice ought to be excused.

This argument is unavailing. The unique circumstances doctrine applies only when a party delays filing a notice of appeal in reliance on judicial action that indicated to the party that its notice of appeal would be timely. Alaska Limestone Corp., 799 F.2d at 1412. Here, Cummings did not assert or show that the district court told her counsel that no decision would be rendered until a certain date, nor does Cummings assert that the district court took any action that indicated to her that her notice of appeal would be timely. The fact that her counsel was informed a week before the decision was rendered that the case was still under submission does not constitute "unique circumstances" excusing Cummings's failure to timely appeal. See id. (party has duty to keep informed, and clerk's failure to notify parties that judgment has been entered does not provide grounds for excusable neglect). Thus, the district court correctly held that Cummings failed to meet the excusable neglect requirement.

AFFIRMED.