From the decision today by Judge Lee Rosenthal (see also this earlier post):
Dr. Stella Immanuel sued CNN for defamation. The court dismissed her complaint with prejudice. Dr. Immanuel sought to appeal the dismissal, but she filed her notice of appeal a day after the 30-day deadline. Because that 30-day deadline is a jurisdictional limitation, the Fifth Circuit dismissed her appeal.
Dr. Immanuel moves under Federal Rule of Appellate Procedure 4(a)(5) to extend the time in which to file her notice of appeal. Dr. Immanuel argues that either excusable neglect or good cause support the extension. CNN opposes the motion….
A court evaluating a motion to extend the time to file a notice of appeal on the basis of excusable neglect makes an equitable decision "taking account all of the relevant circumstances surrounding the party's omission." Relevant factors "include … the danger of prejudice …, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith."
Dr. Immanuel states that her primary counsel timely prepared her notice of appeal, but that her counsel was awaiting the verdict in an unrelated jury trial and was "unable" to forward the notice to her Texas counsel for filing. CNN argues that counsel's failure to forward the document for timely filing is not excusable neglect. CNN does not argue that it would be prejudiced by the extension, or that the motion is made in bad faith.
Dr. Immanuel does not even try to explain why her counsel could not forward the notice of appeal while waiting for a jury verdict in another case. Filing a notice of appeal is a ministerial task. The record does not present any basis to find an excuse for the negligent failure to file the notice of appeal within the deadline, or to delegate that task to another attorney, a paralegal, or an assistant.
