4th Circuit holds missed deadline due to computer glitch causing calendaring error not exclusable neglect

From Law Technology New:

In a recent decision, the 4th U.S. Circuit Court of Appeals analyzed the excusable neglect standard in the context of a notice of appeal from a district court judgment that was filed one day late as a result of a technical error by counsel's computer calendaring system. The court's May 23 opinion is captioned Symbionics Inc. v. Ortlieb.

On Dec. 4, 2009, the U.S. District Court for the Eastern District of Virginia entered judgment on the defendant's counterclaims against Symbionics. Pursuant to Fed. R. App. P. 4(a)(1), the notice of appeal with respect to that judgment had to be filed within 30 days. The 4th Circuit opinion said Symbionics filed one day late, on Jan. 5, 2010, but requested that the district court permit the late filing on the grounds that "a quirk in the functionality of counsel's computer calendar caused counsel to miscalculate the deadline to appeal as Jan. 5, 2010, rather than the correct date of Jan. 4, 2010."

The mistake allegedly resulted from a computer glitch that calculated the deadline based on a January, 2009 calendar rather than the correct 2010 version. The district court concluded this was excusable neglect, Ortlieb appealed and the 4th Circuit reversed. Applying the applicable three part test from Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the 4th Circuit examined:

"(1) danger of prejudice to the opposing party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith . . .  [noting] that the third factor -- the reason for the delay -- is the most important consideration to the excusable neglect inquiry.

. . . .

The court found that Symbionics' explanation for its delay did not present the type of "extraordinary" circumstance satisfying the excusable neglect standard. Symbionics had argued its delay was caused by a computer miscalculation: counsel had used his computer calendaring system, which, according to counsel, had a glitch causing him to believe the applicable period expired one day subsequent to the actual deadline. The court found that this explanation was not extraordinary or unusual, nor did it excuse Symbionics' failure to comply with the deadline set forth in the federal rules.

You can read the court's unpublished, per curiam opinion here.

Hat tip to Above the Law.

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