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Hopkins Manufacturing Corp. v. Cequent Performance Products, Inc.

United States District Court, D. Kansas

August 4, 2017

HOPKINS MANUFACTURING CORP., Plaintiff,
v.
CEQUENT PERFORMANCE PRODUCTS, INC., Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Cequent Performance Products, Inc.'s Motion for Extension of Time to File a Notice of Appeal (Doc. 53) of the Court's Memorandum and Order denying attorneys' fees entered on July 5, 2017.[1] Plaintiff Hopkins Manufacturing Corporation has filed a response.[2] Therefore, the motion is fully briefed and the Court is prepared to rule.[3] For the reasoning explained more fully below, the Court denies Defendant's motion for extension of time to file its notice of appeal.

         In a civil case, the notice of appeal must be filed with the district clerk within 30 days after the entry of the judgment or order appealed from.[4] However, if a party files in the district court any of the following motions under the Federal Rules of Civil Procedure-and does so within the time allowed by those rules-the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b); whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.[5]

         None of these motions have been filed.[6]

         The district court may extend the time to file a notice of appeal if: (1) a party so moves no later than 30 days after the time prescribed by Rule 4(a) expires; and (2) regardless of whether its motion is filed before or during the 30 days after the time prescribed by Rule 4(a) expires, that party shows excusable neglect or good cause.[7] The extension may not exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.[8]

         This motion, which was filed on August 3, 2017, was timely, so the Court must determine whether Defendant meets the second requirement of showing excusable neglect or good cause to extend the time for filing a notice of appeal. There has been no showing of excusable neglect for the extension.[9] Although not articulated, the Court construes Defendant's argument for good cause in seeking the extension because counsel is consumed with preparation for and the conduct of expert depositions in the parallel Michigan litigation.[10]

         The Tenth Circuit has described the concept of “good cause” as “tak[ing] account of a narrow class of cases in which a traditional ‘excusable neglect' analysis would be inapposite.”[11]Good cause exists “in situations in which there is no fault-excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.”[12] Courts have addressed numerous examples of situations where the need for extension was or was not out of control of the movant.[13]

         Here, the Court first notes that Defendant waited until the end of the 30-day period to file this motion, and it has done so at its own peril. Further, the Court is not convinced that counsel taking depositions, which presumably have been scheduled for months, shows the need for an extension based on something outside of Defendant's control.[14] The fact that Defendant's counsel is engaged in other professional obligations pertaining to the Michigan litigation does not show that the deadline cannot be met despite Defendant's diligent efforts. There is no evidence in the record that Defendant's counsel has made any effort to seek the assistance of other attorneys in their office, or even a secretary, to file the notice of appeal. The notice of ...


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