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November 15, 2004

Pincay v. Andrews (2004) 389 F.3d 853

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The Ninth Circuit decides that the trial court is in the best position to evaluate whether a calendaring error is excusable in the context of a case.

Laffit Pincay, Jr. and Christopher McCarron (Pincay) obtained a judgment against Vincent S. Andrews, Robert L. Andrews, and Vincent Andrews Management Corp. (Andrews) on July 3, 2002.  Andrews’s notice of appeal was due 30 days later, but a paralegal misread the rule and advised Andrews’s attorney that the notice was not due for 60 days.  When Andrews’s counsel learned about the error he promptly tendered a notice of appeal and a request for an extension within the 30-day grace period.

The district court found the neglect excusable and granted the motion for an extension of time to file the notice of appeal.  When Pincay appealed to the Court of Appeals a majority of a three-judge panel concluded that Andrews’s attorney had improperly delegated the function of calendaring to a paralegal, which was inexcusable as a matter of law.

On rehearing an en banc panel reasoned that the delegation of repetitive tasks to paralegals is necessary to manage the costs of legal representation.  Delegation of tasks to specialized, well-educated non-lawyers could ensure greater accuracy than if each lawyer calculated each filing deadline anew.  The responsibility for any error falls on the attorney regardless of whether the error was made by the attorney or a paralegal.  Thus, delegation of the calendaring task was not per se inexcusable neglect.

The panel noted the four-part balancing test for determining “excusable neglect.” The factors include: (1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the moving party, and (4) whether the moving party’s conduct was in good faith.

The court then turned to whether the misreading of a clear rule could appropriately have been considered excusable.  Different courts applying the balancing test have come to varied results on the question of whether misreading the law constitutes excusable neglect.

While a lawyer’s failure to read a rule is not a compelling excuse, the balancing test counsels against the creation of any rigid rule.  The district court is in a better position than an appellate court to evaluate factors such as whether the lawyer had otherwise been diligent, the propensity of the other side to capitalize on petty mistakes, the quality of representation of the lawyers, and the likelihood of injustice if the error is not excused.  The trial court is most familiar with the context of a particular case within which issues of excusable neglect are determined.  A per se rule that misinterpretation of an unambiguous rule can never be excusable neglect is contrary to the concept that excusable neglect is an elastic concept, equitable in nature.

Comment: Had the case been determined against Andrews, the deferential abuse of discretion standard would have withstood appellate scrutiny as well.  Many courts would disagree that a misreading of an unambiguous statute could ever be considered.

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