Albert O. O'rourke; Raymond C. O'rourke; Rorack, (raymondc. O'rourke and Alan C. Kolb); Raymond O'rourke, Andraymond O'rourke Associates, (computrad, Inc., Latticeelectromagnetics, Inc., Yacht Charters Limited, Inc.),plaintiffs-appellants, v. Maxwell Laboratories, a Delaware Corporation; Karlsamuelian; S-cubed, a Division of Maxwell Laboratories,inc.; Frank Clark; Parker, Milliken, Clark, O'hara Andsamuelian, a California Corporation, Defendants-appellees, 967 F.2d 589 (9th Cir. 1992)Annotate this Case
Submitted June 23, 1992. *Decided June 26, 1992
Before FLETCHER, LEAVY and T.G. NELSON, Circuit Judges.
Plaintiffs appeal from the district court's denial of their motion for an extension of time in which to file a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Under Federal Rule of Appellate Procedure 4(a) (5), " [t]he district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal...." Fed. R. App. P. 4(a) (5). "In this circuit, the standard for determining excusable neglect is a strict one.... Inadvertence or mistake of counsel ... does not constitute excusable neglect." Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986) (quotations omitted).
Here, the plaintiffs failed to file a timely notice of appeal from the district court's dismissal of their action on April 12, 1990. The plaintiffs, however, filed a timely motion for an extension of time in which to file their notice of appeal pursuant to Fed. R. App. P. 4(a) (5). In this motion, the plaintiffs' attorney, Albert O. O'Rourke, cited his other pending legal matters, which "used up all [his] Legal time and concentration," and his misapprehension of when the time for filing an appeal would expire as grounds for excusable neglect. Neither of these reasons, however, constitutes excusable neglect for the plaintiffs' failure to timely file a notice of appeal. See Alaska Limestone Corp., 799 F.2d at 1411; Selph v. Council of City of Los Angeles, 593 F.2d 881, 883 (9th Cir. 1979).