The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Attorney Gerard Smetana, lead counsel for plaintiff Ta-Juana Arrington, has filed a motion "for leave to file notice of appeal one day out of time and alternatively extension of time to file notice of appeal for an additional thirty days pursuant to Rule 4(a) of Federal Rules of Appellate Procedure" is before the court. For the following reasons, the motion is denied.
On December 22, 2008, the court granted La Rabida's motion for summary judgment and issued a Rule 58 judgment. Both the court's order and the Rule 58 judgment were entered on the court's docket on December 22, 2008. The plaintiff filed a Rule 59 motion to reconsider on January 5, 2009, which was within ten business days following December 22, 2008. After briefing, the court denied the plaintiff's Rule 59 motion on February 3, 2009, and its order was entered onto the docket on this same date.
The thirtieth day after February 3, 2009, is March 5, 2009. The plaintiff, through her counsel Gerard Smetana, filed a notice of appeal on March 6, 2009.*fn1 Mr. Smetana's motion seeking leave to file a late notice of appeal is before the court. Despite the fact that numerous orders in this case were docketed on the same day they were issued, Mr. Smetana states that he believed, based on his past pre-CM/ECF experience, that orders are generally docketed the day after they are issued.
He proceeded based on this assumption without checking the docket and filed his notice of appeal accordingly, on what he believed was the last possible day to do so. Shortly after filing his notice of appeal, he reviewed the docket. At this point, he realized that his assumption was incorrect. In the motion presently before the court, counsel asks for an extension of the time in which to appeal, contending that his error constitutes excusable neglect under Fed. R. App. R. 4(a)(5) because it was an honest error, the slight delay will not harm La Rabida, and denial of the motion will prejudice his client. Alternatively, counsel contends that the pendency of La Rabida's motion for attorneys' fees means that the time to appeal from the merits judgment has not yet commenced.*fn2
Effect of Pendency of Fee Motion on Time to Appeal
The court begins with counsel's fall-back argument, because if his position is correct, his appeal is not late because the time to appeal has not yet started to run. Counsel stresses that the court has not determined the amount of fees payable to La Rabida by plaintiff's counsel to compensate La Rabida for the time spent rebriefing its motion for summary judgment after the court allowed counsel to file his corrected amended complaint out of time.*fn3 Counsel thus concludes that the time to appeal from the court's decision granting La Rabida's motion for summary judgment and its denial of the plaintiff's Rule 59 motion has not commenced.
This position is at odds with the well-established rule that "the failure to issue a final order on fees does not mean that appellate jurisdiction is lacking over the merits appeal." Houben v. Telular Corp., 231 F.3d 1066, 1071 (7th Cir. 2000); citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200-01 (1988) (a post-judgment award of attorneys' fees is collateral to the judgment on the merits). In other words, the pendency of the fee issue is not germane for purposes of determining if the plaintiff's appeal from the court's merits judgment is timely. See WMS Gaming Inc. v. WPC Productions Ltd., 542 F.3d 601, 605 (7th Cir. 2008) (fact that amount of fees had not yet been determined did not affect appellate jurisdiction over the district court's judgment on the merits).
Trying from another angle, the plaintiff also appears to be contending that La Rabida's fee motion acts as a Rule 59 motion and thus tolls the time to appeal under Rule 4(a)(4)(A)(iii) of the Federal Rules of Appellate Procedure, which provides that "[i]f a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: . . . . (iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58." First, La Rabida's fee motion is wholly unconnected to the merits of this case, given that the court awarded fees to compensate La Rabida for work performed due to the failure of plaintiff's counsel to timely file an amended complaint. See Hill v. Baxter Healthcare Corp., 405 F.3d 572, 576 (7th Cir. 2005) (motion filed by the plaintiff "did not come under the scope of Rule 59(e), as it did not in any way seek to reconsider and revise the [merits] decision."
Moreover, the Seventh Circuit has recognized that pursuant to Rule 58(c)(2) of the Federal Rules of Civil Procedure, "[w]hen a timely motion for attorney's fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and has become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59." Robinson v. City of Harvey, 489 F.3d 864, 867-69 (7th Cir. 2007) (emphasis added). The court, therefore, cannot extend the time to appeal using Rule 4(a)(4)(A)(iii) of the Federal Rules of Appellate Procedure after the time to appeal has passed. Id. at 868-69 (an order under Rule 4(a)(4)(A)(iii) may not be used "to revive the already-expired time for appeal").
Finally, counsel appears to be suggesting that the pendency of the fee issue means that the court's summary judgment ruling was not a final and appealable order. This position is untenable given that the court issued a Rule 58 judgment along with the order granting La Rabida's motion for summary judgment. See Docket No. 127. In addition, counsel's belief that La Rabida's fee motion was somehow tied to the merits of the court's decision granting summary judgment to La Rabida is simply incorrect. The fee order at issue compensates La Rabida for an error made by plaintiff's counsel that required La Rabida's counsel to rebrief its motion for summary judgment. The fee issue is thus obviously not related to the merits, since La Rabida would be entitled to the fees awarded by the court regardless of whether its motion for summary judgment was granted or denied. The court thus rejects all of counsel's arguments relating to the fee motion's effect on the timing of his notice of appeal.
Excusable Neglect Under Fed. R. App. P. 4(a)(5)
As noted above, counsel miscounted the date that the plaintiff's notice of appeal was due, explaining "I believed in good faith from my total lack of experience with e-filing, the entry of the denial of plaintiff's Rule 59 Motion was the day following the denial of the motion by the court. I have since learned the clerk of court in fact no longer makes a separate entry of any final judgments or final orders, as they had done in all the ...