Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 10159 -- Paul E. Plunkett, Judge.
Cummings, Manion and Kanne, Circuit Judges.
Plaintiff appeals from the district court's dismissal of its claims and denial of post-judgment motions to reconsider and extend the time for filing an appeal. We do not reach the merits of the dismissal since the plaintiff failed to file a timely notice of appeal from the district court's judgment dismissing the case. Accordingly, the facts are stated summarily.
The claims in this case revolve around an alleged breach of a construction agreement between plaintiff Parke-Chapley Construction Company ("Parke-Chapley") and defendant Craftech Building Systems, Inc. ("Craftech").*fn1 Craftech was in the business of constructing prefabricated homes for residential developers including defendant Autumn Chase Partnership.*fn2 Parke-Chapley was hired by Craftech to perform finishing construction services on a residential development known as the Autumn Chase Development pursuant to an oral agreement with Craftech entered into on behalf of plaintiff by defendant Thomas F. Cherrington, its construction manager. Without reducing the construction agreement to writing, Cherrington caused Parke-Chapley to incur unauthorized expenses incident to performance of the oral contract. Eventually, Craftech induced Cherrington to leave the employ of Parke-Chapley to become the general contractor for Autumn Chase Partnership on the Autumn Chase Development. Prior to leaving, Cherrington allegedly stole various items of personal property and billing statements, preventing Parke-Chapley from billing Craftech as well as other clients for the services performed, and induced other employees to leave Parke-Chapley for employment with the defendant Autumn Chase Partnership. As a result of the defendants' conduct, Parke-Chapley was unable to collect from Craftech, suffering financial hardship and loss of other clients and employees. Plaintiff brought this suit alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., as well as pendent state law claims. The maximum amount of damages sought in the six-count first amended complaint was $100,000 compensatory damages and $1,000,000 exemplary damages.
On October 6, 1987, Judge Plunkett granted defendants' motions to dismiss the RICO claims for failure to state a claim and the pendent state law claims for lack of subject matter jurisdiction. Judgment was accordingly entered on October 8, 1987. Plaintiff subsequently filed a motion for reconsideration on November 5, 1987, which was denied on February 3, 1988, and a motion for an extension of time for filing notice of appeal on December 3, 1987, which was denied on February 5, 1988.
A notice of appeal in a civil suit must be filed within thirty days of the entry of judgment. Federal Rule of Appellate Procedure ("F.R.A.P.") 4(a)(1). Plaintiff could have filed a notice of an appeal at any time before November 9, 1987. However, it did not file this appeal until February 12, 1988, well beyond the period allowed by F.R.A.P. 4(a)(1).
The timely filing of a notice of appeal is mandatory and jurisdictional. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 54 L. Ed. 2d 521, 98 S. Ct. 556. In spite of the untimely appeal to this Court, plaintiff contends that we may review the district court's dismissal on the ground that the district court abused its discretion in failing to grant plaintiff an extension of time in which to file a notice of appeal. Plaintiff claims that F.R.A.P. 4(a)(5) compels an extension of time for filing a notice of appeal based on a showing of "excusable neglect or good cause"*fn3 when counsel has committed a good faith misconstruction of the Federal Rules of Civil Procedure ("FRCP") or interpreted the comments of the district court judge to imply that filing a motion to reconsider would toll the time period for filing an appeal.
If a notice of appeal is not filed within thirty days following the entry of judgment by the district court, F.R.A.P. 4(a)(5) allows a party to request an extension of time to file an appeal if such a request is filed not later than thirty days after expiration of the period allowed for appeal. If granted, the motion expands the period for an appeal up to the later of thirty days from the expiration of the original filing period or ten days from entry of the order granting the motion to extend. Given that the district court's judgment was entered on October 8, 1987, plaintiff had until December 9, 1987, to file such a motion.
Plaintiff's extension motion was initially stamped "Received" by the district court on December 3, 1987, then "Filed" on December 18, 1987, and finally "Docketed" on December 21, 1988. Defendants argue that it was not within the discretion of the district judge to grant plaintiff's F.R.A.P. 4(a)(5) motion because it was not timely filed. Defendants assert that plaintiff's motion was not filed until December 18, 1987, by singling out one of the three separate dates stamped on the face of plaintiff's motion. In contrast to their position before this Court, defendants had previously admitted that plaintiff's extension motion was timely filed on December 3, 1987, in their letters in opposition to that motion before the district court. R. items 82, 83. It is also abundantly clear from the face of the motion itself that it was timely filed with the district court on December 3, 1987. If there was any further question about the timeliness of plaintiff's motion, defendants should have raised the issue before Judge Plunkett rather than on appeal.
F.R.A.P. 4(a)(5) allows a district court to grant a party an extension of time to appeal upon a showing of excusable neglect or good cause. As indicated by the Advisory Committee Notes to F.R.A.P. 4(a)(5),*fn4 if Parke-Chapley's motion had been filed within thirty days of the October 8, 1987, entry of judgment (instead of on December 3), it would have been evaluated under the lesser threshold standard of "good cause".*fn5 However, when a motion for an extension of time is filed after the expiration of the thirty-day period for appeal following judgment, the appropriate standard for extension of the filing period is "excusable neglect". Redfield v. Continental Cas. Co., 818 F.2d 596, 601 (7th Cir. 1987). Three of the four other circuits that have construed F.R.A.P. 4(a)(5) are in accord. Oregon v. Champion Internat. Corp., 680 F.2d 1300 (9th Cir. 1982), In re Cosmopolitan Aviation Corp., 763 F.2d 507 (2d Cir. 1985), certiorari denied, 474 U.S. 1032, 106 S. Ct. 593, 88 L. Ed. 2d 573 and Consolidated Freightways Corp. v. Larson, 827 F.2d 916 (3rd Cir. 1987), certiorari denied, 484 U.S. 1032, 108 S. Ct. 762, 98 L. Ed. 2d 775. Scarpa v. Murphy, 782 F.2d 300 (1st Cir. 1986), alone rejects the ruling in Champion and then only in dicta.
Plaintiff asserts that our construction of F.R.A.P. 4(a)(5) in Redfield was erroneous and that an extension may be granted for either good cause or excusable neglect even if the request is made after the expiration of the thirty-day period following judgment. Parke-Chapley relies on 16 Wright, Miller, Cooper & Gressman, Federal Practice & Procedure, § 3950, at 302 (Supp. 1987): "The history of this provision may cause some confusion as to the availability of the 'good cause' standard, but it seems clear from the text of the rule that it should be applied to any motion made within the time permitted by Rule 4(a)(5)." However, as decided in Redfield, the correct interpretation is reflected by the Advisory Committee's commentary to the rule. The more lenient standard of good cause was added to address requests for extensions of time made prior to the expiration of the thirty-day appeal period. The addition of the good cause standard recognizes that a request made within the thirty-day period should be subject to a lower showing of necessity "since at the time [the attorney] requests the extension, [the attorney] has not neglected to do anything the rules require [the attorney] to do." 9 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, para. 204.13[1.-1].
Further, a number of changes were made in the rules concurrently with the addition of the good cause standard in 1979. These amendments affected the docketing and management of appeals, making it appropriate to relax the standard for granting an extension of time for the filing of a notice of appeal when the extension is sought before expiration of the initial appeal time. See 9 Moore, Federal Practice, para. 204.13[1.-1]. In 1979, F.R.A.P. 3(e) was added to require the payment of the docket fee to the district court clerk at the time the notice of appeal is filed. Additionally, an appeal may no longer be dismissed within forty days on motion in the district court (ibid.), since the appeal is entered on the docket of the court of appeals as soon as the clerk receives the copy of the notice of appeal and docket entries. F.R.A.P. 3(d), 12(a). In order to dismiss the appeal, a motion must be filed in the court of appeals and any fees paid then. F.R.A.P. 42(b).
The 1979 changes have made it less attractive to file a protective notice of appeal. The more lenient standard of good cause was added to enable the district court to grant extensions of the filing time when such a request is made while time to file remains in order to allow the potential appellant more time to consider the necessity of an appeal. See 9 Moore, Federal Practice, para. 204.13 [1.-2]. There is no indication from the framers of the appellate rules that the standard for granting extensions after the period for appeals has run was intended to be made correspondingly more lenient. Indeed, if the lesser showing of good cause were to apply to requests for extensions both before and after the thirty-day filing period had expired, the stricter excusable neglect showing would be superfluous. Judge Friendly, a member of the Advisory Committee that drafted the Federal Rules of Appellate Procedure, underscored the necessity to construe F.R.A.P. 4(a)(5) strictly for extensions after the thirty-day filing period has expired:
To be sure, in most cases where application for an extension of time is made within the second 30-day period provided in F.R.A.P. 4(a)(5), the court's sympathy will lie with the applicant: the hardship of being denied an appeal is great . . ., while the hardship to the prospective appellee is usually small. But a loose interpretation of "excusable neglect" would convert the 30-day period for ...