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

This appeal represents a lawyer’s nightmare. A sophisticated law firm, with what it thought was a sophisticated system to determine and calendar filing deadlines, missed a critical one: the 30-day time period in which to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(A). The rule, however, provides for a grace period of 30 days within which a lawyer in such a fix may ask the district court for an extension of time, and the court, in the exercise of its discretion, may grant the extension if it determines that the neglect of the attorney was “excusable.” 1 Here an experienced trial judge found excusable neglect, and the appellee asks us to overturn that ruling.

The underlying dispute began in 1989 when Laffit Pincay, Jr. and Christopher MeCarron (Pincay) sued Vincent S. Andrews, Robert L. Andrews, and Vincent Andrews Management Corp. (Andrews) for financial injuries stemming from alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and California law. In 1992, a jury returned verdicts in Pincay’s favor on both the RICO and the California counts. Pincay was ordered to elect a remedy, and *855 he chose to pursue the RICO…

concurring:

Although I join the majority opinion in full, I write separately to briefly emphasize the two points that I believe dispositive of this case and that explain why I cannot agree with an otherwise persuasive dissent.

First, in his dissent, Judge Kozinski concludes that “[m]ost of the work” is done by Pioneer’s third factor — the reason for the delay. Post at 862. But Pioneer portends a balancing test, and does not ascribe determinative significance to any single factor. In other words, whether neglect is”excusable” is the conclusion one reaches after considering the pertinent factors, not an independent element with moral content. Pioneer thus indicates that a district court may find neglect “excusable” if it is caught quickly, hurts no one, and is a real mistake, rather than one feigned for some tactical reason — even if no decent lawyer would have made that error. There is no linguistic flaw in terming such errors “excusable,” meaning nothing more than “appropriate to excuse.”

Second, even if I agreed with the dissent that the defendants had to show “something” in satisfaction of Pioneer’s third prong, I would hold that there is “something” here. The dissent’s…

dissenting:

We must never forget that it is “excusable neglect” we are expounding. Before Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 , 113 S.Ct. 1489 , 123 L.Ed.2d 74 (1993), four circuits had forgotten; they interpreted this phrase as “requiring a showing that the delay was caused by circumstances beyond the movant’s control.” Id. at 387 n. 3, 113 S.Ct. 1489 . But how could circumstances beyond one’s control be neglect? A jurisprudence that refused to excuse anything one could fairly call “neglect” was inconsistent with the clear text of rules that, by their terms, provide exceptions for “excusable neglect.” Pioneer corrected the error and gave us a four-part test for recognizing when admitted neglect — inadvertence, miscalculation, negligence, carelessness — can nonetheless be excused.

But if excusable neglect must be neglect, it must also be excusable. Pioneer’s four-part test isn’t just a black box into which we throw (1) prejudice to the adverse party, (2) the length of the delay, (3) the reason for the delay, and (4) the good faith of the movant, and accept whatever comes out. When all the weighing and balancing is done, we must…

389 F.3d 853 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 En Banc June 24, 2004. Filed November 15, 2004. Neil Papiano and Patrick McAdam, Iverson, Yoakum, Papiano & Hatch, Los Angeles, CA, for plaintiffs-appellants. David Boies and Robert Silver, Boies, Schiller & Flexner, LLP, Armonk, NY, for 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 SCHROEDER, Chief Judge, KOZINSKI, RYMER, KLEINFELD, THOMAS, SILVERMAN, McKEOWN, GOULD, BERZON, RAWLINSON, and CALLAHAN, Circuit Judges. SCHROEDER, Chief Judge. This appeal represents a lawyer's nightmare. A sophisticated law firm, with what it thought was a sophisticated system to determine and calendar filing deadlines, missed a critical one: the 30-day time period in which to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(A). The rule, however, provides…