Estate of Mitchell v. American Reliable Insurance

MEMORANDUM *

The Estate of Mitchell appeals the district court’s grant of summary judgment with respect to its breach of contract and declaratory judgment action against American Reliable Insurance Company (“ARIC”). ARIC cross-appeals the district court’s order extending the time to file a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(1). We affirm the district court’s order extending the time to file an appeal, reverse its grant of summary judgment, and remand for further proceedings.

“We review for abuse of discretion a district court’s decision to grant or deny a motion for an extension of time to file a notice of appeal.” Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir.2004) (en banc). “We review the grant or denial of summary judgment de novo,” viewing evidence in the light most favorable to the nonmoving party. Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.2004).

I. Extension of Time to File Appeal

Lucas Foust was appellant’s counsel of record, and he had notice that judgment had been entered. Because “notice served upon a party’s attorney of record is adequate,” Guam Econ. Dev. Auth. v. Ulloa, 841 F.2d 990, 993 (9th Cir.1988), the…

dissenting:

Although I agree with the majority that the district court erred in its application of Fed. R.App. P. 4(a)(6), I disagree with the majority’s decision that it can rely on Fed. R.App. P. 4(a)(5) to uphold the district court’s erroneous ruling. In determining whether a party is entitled to relief from a procedural error under Rule 4(a)(5), a district court must apply the factors set forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 , 113 S.Ct. 1489 , 123 L.Ed.2d 74 (1993). An en banc panel of this court held that we must “leave the weighing of Pioneer’s equitable factors to the discretion of the district court in every case.” Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir.2004) (en banc). Instead of following Pincay , the majority accepts as fact the Estate’s allegations that ARIC anticipated an appeal, that the thirteen-day delay had no significant impact on the proceedings, and that the electronic failure was beyond the parties’ control. Maj. Op. at 152. The majority then makes its own finding that all of the relevant parties acted in good faith. Id. Based on these findings, the majority resolves…