Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 4682 -- John F. Grady, Judge.
Before POSNER, COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.
PELL, Senior Circuit Judge. Defendant-appellant Administratia Asigurarilor de Stat (AAS), an insurance entity owned by the government of Romania, appeals from the denial by the district court of its motion for an extension of time in which to file a notice of appeal made pursuant to Fed. R. App. P. 4(a)(5). AAS contends that the district court abused its discretion in denying the motion to extend the filing deadline. For the reasons set forth below, we affirm the decision of the district court and find no abuse of discretion on its part.
The rather attenuated chronology of the facts of this case are well-known to he parties, therefore, we pause, only briefly, to summarize the most salient details. Plaintiff Reinsurance Corporation of America (RCA) sued AAS for damages claiming that RCA was owed money pursuant to certain contracts of insurance to which AAS and RCA were parties. The district court granted RCA's motion for summary judgment on July 9th, 1985, and requested proof from RCA of its damages. Although AAS was represented by counsel, both locally and by lead counsel in New York, AAS at no time contested RCA's motion for summary judgment or its allegation of damages. Following AAS's failure to appear at a final status hearing, called to allow both parties to submit proposed judgment orders, RCA's unopposed order was adopted and judgment entered, on November 27th, against AAS for $337,597.00. Notice of this judgment was mailed to all counsel of record.
Four days after it was due on December 27th, 1985, AAS filed its notice of appeal on December 31st.*fn1 RCA moved to dismiss AAS's appeal on grounds of untimeliness and AAS filed a motion seeking an extension of time -- from December 27th to December 31st -- in which to file its notice of appeal. In its motion to extend the filing date, AAS stated: (i) that it did not learn of the entry of a final judgment in its case until December 18, 1984 and (ii) that an uncontrollable mail delay occasioned by the holiday season prevented the timely filing of the notice of appeal. In fact, upon further inquiry, the district court leaned that, on or about December 2nd, AAS had been told by a business contact in the United States about a partial summary judgment entered against AAS in this case in April 1984. Frustrated by the failure of its counsel of record to apprise AAS truthfully of the status of its case, AAS contacted a New York based acquaintance of its officers and requested him to investigate the actual current status of the AAS-RCA litigation. AAS's emissary, Mr. Herescu, contacted RCA's counsel by phone on December 5th and requested a copy of the district court's November 27th order which was received by Herescu from Chicago on December 10th. Herescu then sent a copy of the judgment to AAS in Romania via regular mail on December 10th and AAS acknowledged receipt of the judgment as of December 20th. Finally, on December 21st, AAS called Herescu in New York and instructed him to file a notice of appeal which was ultimately prepared and sent to Chicago three days later on December 24th, Christmas Eve, and which arrived at the district court clerk's office on December 31st.
On March 13th, 1986, the district court denied AAS's motion to extend time. In his order, Judge Grady suggested that while he would likely have granted the motion initially, the inconsistency between the affidavits originally supporting AAS's motion and later, clarifying affidavits filed by AAS left the court with the impression that AAS had had sufficient notice of the court's judgment to negate any possible claim of "excusable neglect." In relevant part, the district court found:
Defendant missed the appeal deadline by only four days, and this court would ordinarily take an indulgent view of any reasonable excuse, given the fact that the notice was mailed four days before the deadline. But defendant, through its attorney, Mr. Herescu, has misrepresented the facts. Whether the misrepresentation was intentional or not, the fact is that Mr. Herescu's initial affidavit of January 23, 1986, gave no hint of the fact that, as conceded by his later affidavit, he knew of the judgment as early December 5. Assuming that Mr. Herescu's status as defendant's attorney did not crystallize until December 18, so that his knowledge acquired on December 5 cannot be attributed to defendant until December 18 when he actually informed defendant in a telephone conversation that a judgment had been entered on November 27, still, it is clear that the defendant knew of the judgment no later than December 18. It had nine days from that date to get its notice of appeal on file. It had Mr. Herescu in New York and local counsel in Chicago. Everyone had access to telephones, and there was no need to rely on the mail. A notice of appeal is a simple document, as is illustrated by the five line notice of appeal that was filed on December 31 . . . We see no basis for finding that the failure to meet the December 27 deadline was because of excusable neglect or that there is good cause for extending the time for filing.
The timely filing of a notice of appeal is, of course, mandatory and jurisdictional. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978); United States ex rel. Leonard v. O'Leary, 788 F.2d 1238, 1239 (7th Cir. 1986). Pursuant to Fed. R. App. P. 4(a)(1) appellant should have filed its notice of appeal with the district court by November 27, 1985. Extensions of Rule 4(a)(1)'s 30-day time limit are governed by Fed. R. App. P. 4(a)(5) which states:
The district court, upon showing of excusable neglect or good cause, may extend the time for filing a notice of appeal. . .
This discretionary authority to make a determination as to the existence of "excusable neglect" and/or "good cause" is not to be disturbed on appeal unless there has been a clear abuse of discretion by the district court. Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir. 1974), cert. denied, 419 U.S. 997, 95 S. Ct. 311, 42 L. Ed. 2d 270 (1974); Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979); In Re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir. 1985). Along these same lines, the Seventh Circuit has, on a prior occasion, concluded that wide latitude should generally be accorded a district court in determining excusable neglect. Files v. City of Rockford, 440 F.2d 811, 816 (7th Cir. 1971).
Predictably, Fed. R. App. P. 4(a)(5) does not define what constitutes excusable neglect or good cause but a brief review of Rule 4's pedigree suggests that "excusable neglect" was intended to be narrowly construed. The predecessor of present-day Rule 4 was Fed. R. Civ. P. 73, adopted in 1937 to expedite appeals and guard against dilatory tactics. In 1946, Rule 73 was amended to include the present 30-day time limit for filing appeals as well as the first mention of "excusable neglect" as a ground for extending the new 30-day appeal period. The amendment provided, ". . . except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal . . . " See 9 Moore's Federal Practice P203.21 et seq.; Files v. city of Rockford, 440 F.2d 811 (7th Cir. 1971). A 1966 amendment to Rule 4 deleted the phrase "based upon a failure of a party to learn of the entry of the judgment" for the purpose of, according to the committed note:
"empower[ing] the district court to extend the time upon a showing of excusable neglect of any kind. In view of the ease with which an appeal may be perfected, no reason other than failure to lean of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the ...