Laffit Pincay, Jr. Christopher J. McCarron v. Vincent S. Andrews Robert Andrews Vincent Andrews Management Corp.

Lafitt Pincay, Jr. and Christopher J. McCarron (“Pincay”) appeal the order of the district court retroactively extending the time in which Vincent S. Andrews, Robert L. Andrews, and Vincent Andrews Management Corp. (“Andrews”) might appeal from an adverse judgment of the district court. Holding that the district court made a mistake of law, we reverse the order of the district court.

PROCEEDINGS

In litigation that began in 1989, Pincay sued Andrews for financial injuries in violation of RICO and California law. In 1992, a jury returned verdicts in Pincay’s favor on both the RICO and California counts. Pincay was ordered to elect one remedy or the other; he chose the RICO judgment. On appeal, this judgment was reversed on the basis of the federal statute of limitations. Pincay v. Andrews, 238 F.3d 1106 (9th Cir.2001). On remand, Pin-cay elected the state remedy. Judgment was entered in his favor on July 3, 2002.

On July 10, the nonlawyer calendaring clerk in the large law firm representing Andrews faxed the lawyer supervising the *949 case a copy of the judgment. This lawyer was not in the office, and an exchange of emails resulted:

Calendaring clerk to lawyer:

To this…

351 F.3d 947 Laffit PINCAY, Jr.; Christopher J. McCarron, Plaintiffs-Appellants, v. Vincent S. ANDREWS; Robert Andrews; Vincent Andrews Management Corp., Defendants-Appellees. No. 02-56577. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 16, 2003 — Pasadena, California. Filed December 10, 2003. Neil Papiano, Los Angeles, California, for the plaintiffs-appellants. David Boies, Armonk, New York, for the defendants-appellees. Appeal from the United States District Court for the Central District of California; William Matthew Byrne, Senior Judge, Presiding. D.C. Nos. CV-89-01445-WMB, CV-89-04965-WMB. Before: John T. NOONAN, Andrew J. KLEINFELD, and Kim McLane WARDLAW, Circuit Judges. OPINION NOONAN, Circuit Judge. 1 Lafitt Pincay, Jr. and Christopher J. McCarron ("Pincay") appeal the order of the district court retroactively extending the time in which Vincent S. Andrews, Robert L. Andrews, and Vincent Andrews Management Corp. ("Andrews") might appeal from an adverse judgment of the district court. Holding that the district court made a mistake of law, we reverse the order of the district court. PROCEEDINGS 2 In litigation that began in 1989, Pincay sued…

dissenting:

I respectfully dissent.

In my view, the majority makes two mistakes. First, it takes too constricted a view of the Supreme Court’s decision in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 1 and second, it accords insufficient deference to the district court’s exercise of discretion.

I certainly do not quarrel with the majority’s exasperation at an experienced lawyer from a large and well-staffed firm carelessly delegating the reading of appellate rules to a non-lawyer and failing adequately to supervise. And I note with approval that the majority indicates this was a “large law firm,” distinguishing the negligence here from that of a solo practitioner, who “would not even be in a position to attempt this kind of delegation.” 2 The majority thus leaves room, in a solo practitioner’s case, for the court to consider whether the decision in the case at bar should be distinguished. A lawyer in a large firm who was out of town could presumably have some young associate work as late into the night as necessary to discover, read, and follow Federal Rule of Appellate Procedure 4, but a solo would be unable to call upon such useful help.

My…