Calendar Carefully: Excusable Neglect

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Repeat after the Eleventh Circuit:

“The timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate jurisdiction.”

(citation omitted).

Sure, there’s an out in Federal Court. You can ask the trial court for an enlargement of time to file the notice of appeal — if you can demonstrate excusable neglect or good cause. But in a recent unpublished opinion, the Eleventh Circuit upheld the trial court’s denial of such a motion, noting that:

miscalendaring a deadline was within the reasonable control of the Plaintiff, and that the “cumulative effect” of the Plaintiff’s missed deadlines exhibited an absence of good faith

The moral of the story: Don’t ever rely on a Rule 4(a)(5)(A)(ii) motion to extend the time to file a notice of appeal. The bar for establishing “excusable neglect or good cause” is a moving target, and review of the trial court’s decision on such a motion is on an abuse of discretion standard. So don’t mess around with your calendaring!

The case is Global Horizons Inc. v. Del Monte Fresh Produce N.A., Inc., No. 09-16508 (11th Cir. Aug. 17, 2010) [.pdf].

Days are Days

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Even if you aren’t normally a rules geek, this is the year to order new rules books. On December 1, 2009, a far-reaching shift in time calculation rules goes into effect across all of the Federal rules of procedure. Referred to as the Days are Days approach, the intent is to remove confusion over when weekends are counted in time calculations, and when they are not. This basic principle has been implimented in both the rules of appellate procedure and the rules of civil procedure. Be aware of the changes in both sets of rules, as the calculation of some jurisdictional deadlines may be affected.

The Record: Journal of the Appellate Practice Section published a more detailed article about this change written by yours truly in its Fall 2009 issue. I’ve uploaded a .pdf of the article for your reading pleasure.