PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 11-2553 and 11-2669

_______________

GLENFORD RAGGUETTE,

Appellant in No. 11-2553

v.

PREMIER WINES & SPIRITS,

Appellant in No. 11-2669

_______________

On Appeal from the District Court

of the Virgin Islands

(D.C. Civil No. 2-06-cv-00173)

District Judge: Hon. Timothy J. Savage

_______________

Argued May 9, 2012

BEFORE: CHAGARES, JORDAN and 

COWEN, Circuit Judges

(Filed: August 15, 2012)
2

Lee J. Rohn, Esq.

E. Geoffrey Wolfe, Esq. (Argued)

Lee J. Rohn & Associates

1101 King Street

Christiansted, VI 00820

Counsel for Appellant in No. 11-2553

Anna H. Paiewonsky, Esq. (Argued)

6501 Red Hook Plaza, Suite 201

St. Thomas, VI 00802

Counsel for Appellant in No. 11-2669

_______________

OPINION

_______________

COWEN, Circuit Judge. 

Plaintiff Glenford Ragguette appeals from the order of 

the District Court of the Virgin Islands granting the motion 

for summary judgment filed by Defendant Premier Wines and 

Spirits, Ltd. In turn, Premier appeals from the order of the 

District Court granting Ragguette‘s motion for an extension 

of time to file a notice of appeal under Federal Rule of 

Appellate Procedure 4(a)(5). We hold that the District Court 

abused its discretion by finding that Ragguette established 

―excusable neglect‖ under this rule. We accordingly 
3

determine that the motion for an extension of time to file a 

notice of appeal under Rule 4(a)(5) was improvidently 

granted. We will therefore dismiss Ragguette‘s appeal for 

lack of appellate jurisdiction.

I.

Ragguette alleged a number of employment 

discrimination and related claims against his former 

employer, Premier. Throughout this litigation, Ragguette has 

been represented by attorneys from a firm currently known as 

Lee J. Rohn & Associates—and primarily by Lee J. Rohn, 

Esquire, herself.

In a January 5, 2010 order, the District Court granted 

Premier‘s summary judgment motion and entered judgment in 

favor of Premier and against Ragguette. The District Court 

provided its reasons for this determination in an 

accompanying memorandum opinion entered on the same 

day.

Ragguette‘s counsel failed to file a notice of appeal 

within 30 days of the judgment or order pursuant to Federal 

Rule of Appellate Procedure 4(a)(1)(A). On January 13, 

2010, Premier filed a motion for attorneys‘ fees and costs 

under Federal Rule of Civil Procedure 68, specifically asking 

for the award to be directed (jointly and severally) against 

Ragguette and his counsel. Ragguette submitted an

opposition to this fee motion on January 28, 2010. In a 

February 8, 2010 order, the District Court scheduled a fee 

hearing for February 23, 2010. But, on February 24, 2010, 
4

the hearing was rescheduled for March 1, 2010. Following 

this hearing, Premier filed a contested motion to amend its fee 

motion, requesting, among other things, a fee award directed 

against Rohn in her individual capacity. The original motion 

and the motion to amend, however, were subsequently 

withdrawn by Premier.

 On March 5, 2010, Ragguette filed a motion for 

issuance of an order pursuant to Federal Rule of Civil 

Procedure 58(e), or, in the alternative, for an order granting 

an extension of time to file a notice of appeal pursuant to 

Federal Rule of Appellate Procedure 4(a)(5). With respect to 

the alternative form of relief, he argued, inter alia, that his 

attorney‘s failure to file a timely notice of appeal was caused

by excusable neglect. In short:

Because of trial preparation for several 

other cases, counsel failed to actually issue the 

computer task. Specifically, counsel annotated 

the order as to appeal issues and provided it to 

the secretary on the case. The procedure in the 

office is that a task should have been generated 

by counsel to file the notice of appeal at the 

same time. The secretary scanned the order 

with the annotation in to the system on January 

11, 2010 (Exhibit 1) but because there was no 

task did not prepare the appeal. Counsel was 

unaware that the notice of appeal had not been 

e-filed and did not discover the same until 

preparing for the hearing on the fee issue when 

she did not find a notice of appeal in the 
5

computer file.

In this case, the failure to file a timely 

notice of appeal was due to excusable neglect, 

so as to warrant the granting of the motion for 

extension of time. The objective record shows 

that lead counsel for Plaintiff ―annotated the 

Memorandum Opinion of the summary 

judgment ruling to be used to draft the notice of 

appeal to move to appeal on the grounds as 

noted in the annotated document, and on the 

ground of the rulings denying discovery. See 

screen shot showing date the annotated 

judgment was scanned as of January 11, 2010 

(Exhibit 1). Counsel had requested that the 

annotated motion be scanned into the appeals 

file. See, Exhibit 1, the annotations on the 

Memorandum. Counsel was in trial and in 

mediations and then off island as set forth 

herein.

It has now come to counsel‘s attention 

that all that was done was that the annotated 

Memorandum Opinion was scanned. The fact 

that counsel was off-island, and the fact that in 

her absence, the notice would have been 

prepared and reviewed and filed by another 

staff attorney, Counsel reasonably thought that 

the task had been issued. 

 

(A343-A344 (error in original).) A so-called ―screen shot‖ 
6

(which listed a pdf file entitled ―Annotations-reMemorandum-Opinion-and-Thoughts-for-Appeal01/11/2010‖ and indicated that this document was last 

modified at 7:44 a.m. on January 11, 2010) was attached as 

Exhibit 1 to Ragguette‘s motion. (Dist. Ct. Dkt. Entry #137-

1.) 

Premier filed its opposition to this motion on March 

16, 2010, and Ragguette submitted a reply on April 1, 2010. 

He also submitted an affirmation from Rohn herself as well as 

an annotated copy of the District Court‘s January 5, 2010 

memorandum opinion (attached as Exhibit A). Rohn 

provided the following explanation for why the notice of 

appeal had not been filed: 

2. As represented in the Motion for 

Issuance of An Order pursuant Pursunat-toFRCP 58(e)-or-in-the-Alternative-an-OrderGranting-an-Extention-of-Time-to-File-aNotice-of-Appeal-03-05-2010 after annotating 

the court‘s ruling, I submitted to my legal 

assistant and new motions attorney the 

annotated ruling, with the intention that a notice 

of appeal should be filed on the grounds as 

annotated in the ruling. See, Exhibit A,

Annotated Ruling.

3. I had a mental lapse and failed to realize 

I was working with my relatively new motion 

attorney and not my former associate and 

partner of over 11 years who would have 
7

correctly interpreted my notes and 

automatically calendared and drafted a notice of 

appeal without the need of a specific task, 

instead of simply filing the annotated decision. 

I further intended to issue a task and reasonably 

thought I had done so. It appears I either didn‘t 

send the task or didn‘t complete the procedure 

as no task was generated by the computer.

4. That my intention was to appeal the 

ruling is manifest from the annotated decision.

5. Given the press of matters requiring my 

attention, matters that are objectively verifiable, 

it is understandable and reasonable under the 

circumstances that this oversight occurred.

6. I honestly believed that a notice of 

appeal was filed in accordance with my 

annotations on the decision.

7. I did not mention the intent to appeal 

during the hearing regarding the motion for fees 

because I wanted to verify my records as to 

what occurred.

(A355-A356 (errors in original).) There were a number of 

handwritten comments and notations on the annotated 

memorandum opinion. Most significantly, the following

comment was written at the top of the first page: ―*Scan in as 

 ̳thoughts Re appeal‘.‖ (A357.)
8

The District Court denied Ragguette‘s motion on May 

14, 2010. Ragguette filed a notice of appeal on May 20, 2010 

(a notice of appeal was previously entered on the docket on 

May 17, 2010, but Ragguette was then directed to refile using 

the correct prompt). On April 19, 2011, we upheld the 

District Court‘s denial of his request for an order under 

Federal Rule of Civil Procedure 58(e) because Premier never 

filed the appropriate motion for fees and costs pursuant to 

Federal Rule of Civil Procedure 54(d)(2). However, we

vacated the District Court‘s denial of his request for relief 

under Rule 4(a)(5) and remanded ―the case to the District 

Court to analyze whether the neglect at issue in this case was 

excusable under the Pioneer standard.‖ Ragguette v. Premier 

Wines & Spirits, Ltd., 424 F. App‘x 155, 157 (3d Cir. 2011) 

(footnote omitted). We explained that the Supreme Court‘s 

ruling in Pioneer Investment Services Co. v. Brunswick 

Associates Limited Partnership, 507 U.S. 380 (1993), 

established an equitable approach to the ―excusable neglect‖ 

determination. While a court must still take into account all 

of the relevant circumstances, ―Pioneer provides four factors 

to consider when making this equitable determination: (1) the 

danger of prejudice to the non-movant; (2) the length of the 

delay and the 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.‖ Ragguette, 424 F. App‘x at 156-57 (citing 

Pioneer, 507 U.S. at 395). We concluded that the District 

Court abused its discretion by disposing of the Rule 4(a)(5) 

motion ― ̳without an opinion, without a reason, and more 

importantly, without reference to the Pioneer four-factor 
9

balancing standard.‘‖ Id. at 157 (quoting In re Diet Drugs 

Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir. 2005))). 

On May 16, 2011, Premier filed its supplemental 

opposition to the Rule 4(a)(5) motion. Among other things, 

Premier referred to Ragguette‘s testimony at a recusal hearing 

held before the District Court on January 26, 2011. It also 

submitted a letter to Ragguette from a legal assistant at the 

Rohn law firm named Enith Abraham, which was dated 

January 14, 2000 and stated that the enclosed documents were 

being returned to him for his records. Most significantly, 

Premier attached as an exhibit a series of e-mails exchanged 

by Rohn and Glenda Cameron, Esquire (who was then 

working with the firm on a contract basis), which had been 

produced in connection with an unsuccessful recusal motion 

previously filed by Ragguette and other Rohn clients.

Rohn began the rather lengthy e-mail chain at 2:03 

p.m. on March 1, 2010:

it appears that the order on summary judgment 

came in on January 5, 2010. although I did an 

annotation of the order and instructed taht it be 

placed in the appeal file after the finling of the 

notice of appeal, the appeal was not filed. i 

only learned about it to day when prepping for 

argument on the issue of whether defendant can 

be awarded fees and costs. that hearing was 

today. the motion had originally been brought 

under rule 68 re offer of judgment. but at 

argument today the defendant stated it wanted 
10

to add an argument under title vii that the 

complaint was frivolous and as such defendant 

should be awarded fees. the judge then invited 

her to also make an argument that the fees 

should be against counsel and not plaintiff. we 

argued the motion woould not be timely and 

opposed. court granted her a week to amend 

her motion to add issues re why case was 

frivolous etc and why fees should be awarded 

under title vii. can I use that pending motion to 

file the appeal of hte underlying order for sj to 

wait and file appeal until that motion is ruled 

on? if not is there someway I can file the 

appeal out of time.

 

(A406 (errors in original).) The two attorneys then 

exchanged e-mails addressing, among other things, the 

different options that could be available to pursue an appeal, 

when any motion for relief should be filed and what should be 

included, legal research, and the drafting of the motion itself. 

Asked by Cameron to provide ―facts showing  ̳good cause‘ 

for the failure to file the notice of appeal,‖ Rohn explained 

that:

I annotated the sj ruling and stated move to 

appeal along with rulings denying discovery. 

Please scan in appeal file. Instead all that was 

done was it was scanned into appeal file. I got a 

task response done. I thought it meant both. It 

only meant scanned. Normally under old rules I 

would know if notice done because it would 
11

have been signed and physically filed. With 

new if I am not there it just gets e filed so I have 

no way of on hand monitoring. I did not realize 

not filed til prepared for argument on atty fees 

motion

 

(A396 (errors in original).) 

On May 20, 2011, the District Court conducted a 

hearing on the Rule 4(a)(5) motion. Ragguette was not 

present, but Rohn provided a detailed (if unsworn) account of 

what had happened.

Rohn told the District Court that her firm used a 

system of ―computer tasks‖ and ―paper tasks‖ for making and 

monitoring assignments. The Outlook computer program‘s 

task system apparently allows Rohn to assign a particular task 

to a specific subordinate together with a deadline for 

performing the task itself. If the subordinate does not

complete the task within the time limit, ―that task comes back 

to you in red saying, this task has not been done.‖ (A451.) 

On the other hand, there is also ―the physical paper, and the 

conversation.‖ (Id.) Rohn claimed that, although she 

believed that she had successfully generated both a computer 

task as well as a paper task, she actually only ever created a 

paper task.

Rohn further explained that the new attorney or 

appellate motions clerk assigned this task ultimately worked 

for the firm for less than a year (and, at the time at issue here, 

had not been with the firm for a very long time). Rohn 
12

confirmed that ―I don‘t get any ECF1files at all, because I 

don‘t monitor those deadlines,‖ and that, instead, ―all the ECF 

filings in my office, even [those] directed to me internally

through technology, go to the attorney who is actually in 

charge of monitoring those [cases].‖ (A440 (footnote 

added).) Although a self-confessed ―control freak‖ who likes 

to review every document with her signature (A444), it is still 

possible that she would not review a particular motion, even 

though it has her ―computer signature on it,‖ if she was 

unavailable at the time that the document had to be filed 

(A441). She denied taking the position that she missed the 

deadline in this case simply because there ―was just too much 

going on.‖ (A444.) In contrast, she purportedly missed this 

deadline because she believed the notice of appeal had been 

filed given the fact that she ―instructed that it be filed‖ and 

―gave the document to the motions clerk to assign it and to do 

the notice of appeal,‖ which would then have gone out (after 

being reviewed by at least one attorney at her firm) as a nonsubstantive but time-sensitive filing. (A444-A445.) In other 

words, Rohn‘s various activities at the time that the notice of 

appeal should have been filed established ―why the appeal, 

the notice of appeal to be signed would not have necessarily 

come to me‖ and why she ―wouldn‘t have notice that 

someone else didn‘t sign the notice of appeal.‖ (A445-A446.) 

Rohn further indicated that, after the entry of the summary 

judgment order, she consulted with her client about filing an 

 

1

 The Case Management / Electronic Case Filing 

(CM/ECF) system is a computer case management system 

that allows courts to maintain electronic case files and 

attorneys to file (and serve) documents through the Internet.
13

appeal and that he was in agreement with this course of 

action. She also claimed that it was not her experience that 

the Third Circuit sends out scheduling orders within 7 to 10

days of the filing of a notice of appeal. According to Rohn, 

this Court instead sends out a mediation order around 30 days 

after the notice of appeal‘s filing, and a transcript purchase 

order or anything else would have gone to Rohn‘s associate—

not Rohn. In any case, she purportedly would have 

discovered the oversight when the appellate briefing 

schedules were not issued 45 or 60 days after the notice of 

appeal was supposed to be filed.

In the end, Rohn accepted ―responsibility that while I 

believed that I had followed my regular procedure of the 

office, which is a computer tasking system to follow 

deadlines, it appears that I inadvertently did not do so.‖ 

(A451.) She defended her firm‘s ―very involved expensive 

computer system to track documents,‖ and claimed that this 

case involved nothing more than unfortunate ―human error,‖

which is the kind of mistake that everybody makes. (A452.)

 On June 7, 2011, the District Court granted 

Ragguette‘s motion for an extension of time to file a notice of 

appeal under Rule 4(a)(5). Applying the Pioneer factors, the 

District Court focused on the circumstances as they existed on 

the day the motion was actually filed. It did so because any 

subsequent delay cannot be attributed to Ragguette and 

instead resulted from the judicial proceedings. ―Ragguette 

offers his attorney‘s mistake in following-up instructions to 

her staff to file a notice of appeal as the excuse for missing 

the filing deadline.‖ Ragguette v. Premier Wines & Spirits, 
14

Ltd., Civil Action No. 2006-0173, 2011 WL 2359920, at *1 

(D.V.I. June 7, 2011). According to the District Court, 

Ragguette had failed to articulate any specific reason for not 

filing a timely notice of appeal in his original motion and had 

instead merely cited to his attorney‘s busy schedule. At the 

hearing, his attorney ―represented that she had made a 

mistake when she failed to complete an additional step in the 

computer process in her office,‖ which meant that ―her staff 

never received the instructions to perfect an appeal.‖ Id. In 

turn, this attorney provided support for her representation 

―with a screen shot of the computer message.‖ Id. The 

District Court also acknowledged that the ―timing of the Rule 

4 motion is consistent with the defendant‘s suspicion [that 

Ragguette never intended to take an appeal and that his 

attorney decided to file one in retaliation for Premier‘s fee 

proceeding],‖ but it then added that there was no evidence to 

confirm this suspicion. Id. Therefore, the District Court 

found that the failure to file the notice of appeal was caused 

by attorney ―inadvertence.‖ Id. It then stated that:

 The delay, measured at the time Ragguette 

filed his motion, was twenty-nine days, but 

within the time for filing the Rule 4 motion. 

His attorney stated that only when she was 

preparing for the hearing on the motion for 

attorney‘s fees did she realize that the appeal 

had not been taken. She then sought advice on 

how to remediate her failure. There is no 

indication that she purposefully waited until the 

penultimate day to file the motion. Under the 

circumstances, the delay was not inordinate. 
15

Nor was it in bad faith. The defendant argues 

that it will be prejudiced by the passage of time 

because witnesses have become unavailable and 

memories are fading. It also complains about 

the significant costs it has expended since the 

entry of judgment in its favor and will incur in 

the future. The first concern regarding the 

witnesses is not compelling. Ragguette seeks 

leave to appeal. No witnesses are necessary on 

appeal. The record is closed. In the event 

Ragguette‘s appeal is denied, there will be no 

need for witnesses. On the other hand, if he 

prevails, witnesses will be necessary at a trial. 

The defendant would face either situation had 

Ragguette filed a timely appeal. Nor is there 

evidence that defendant has incurred any 

significant costs since the entry of judgment, or 

that it will incur significant future costs 

connected to this motion. Again, at this point, 

any delay beyond the twenty-nine days was not 

Ragguette‘s fault. Moreover, there is no 

demonstration of actual harm to the defendant 

as a result of the late filing.

Id. at *1.

Pursuant to the District Court‘s order granting his Rule 

4(a)(5) motion, Ragguette filed, on June 8, 2011, a notice of 

appeal with respect to the order granting summary judgment. 

Premier likewise appealed from the District Court‘s Rule 

4(a)(5) order itself, which this Court has treated as a cross-
16

appeal.

II.

The District Court had jurisdiction over this 

employment case pursuant to 28 U.S.C. §§ 1331 and 1367. 

As we explain in more detail in Section III, infra, we must 

dismiss Ragguette‘s appeal because of the absence of 

appellate jurisdiction.

It is uncontested that this Court generally reviews a 

district court‘s decision whether or not to grant an extension 

of time to file a notice of appeal for an abuse of discretion. 

See, e.g., In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 

153 (3d Cir. 2005). The district court abuses its discretion if 

its decision rests upon a clearly erroneous finding of fact, an 

errant conclusion of law, or the improper application of law to 

fact. See, e.g., In re Cendant Corp. Prides Litig., 233 F.3d 

188, 192 (3d Cir. 2000). ―An abuse of discretion may also 

occur when  ̳no reasonable person would adopt the district 

court‘s view.‘‖ Id. (quoting Oddi v. Ford Motor Co., 234 

F.3d 136, 146 (3d Cir. 2000)). ―Finally,  ̳we will not interfere 

with the [D]istrict [C]ourt‘s exercise of discretion ―unless 

there is a definite and firm conviction that the court . . . 

committed a clear error of judgment in the conclusion it 

reached upon a weighing of the relevant factors.‖‘‖ Id.

(quoting same).

III.

28 U.S.C. § 2107(a) states that: ―Except as otherwise 

provided in this section, no appeal shall bring any judgment, 
17

order or decree in an action, suit or proceeding of a civil 

nature before a court of appeals for review unless notice of 

appeal is filed, within thirty days after the entry of such 

judgment, order or decree.‖ Pursuant to this statutory 

provision, Federal Rule of Appellate Procedure 4(a)(1)(A) 

provides that, ―[i]n a civil case, except as provided in Rules 

4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by 

Rule 3 must be filed with the district clerk within 30 days 

after entry of the judgment or order appealed from.‖ The 

Supreme Court has determined that ―the timely filing of a 

notice of appeal in a civil case is a jurisdictional 

requirement.‖ Bowles v. Russell, 551 U.S. 205, 214 (2007).

Ragguette was required to file a notice of appeal 

within the applicable 30-day time period following the 

January 5, 2010 entry of the order granting Premier‘s motion 

for summary judgment. In other words, he had to file his 

notice of appeal on or before February 4, 2010. He clearly 

failed to do so.

However, the district courts do ―have limited authority 

to grant an extension of the 30-day time period.‖ Id. at 208. 

28 U.S.C. § 2107(c) provides that ―[t]he district court may, 

upon motion filed not later than 30 days after the expiration 

of the time otherwise set for bringing appeal, extend the time 

for appeal upon a showing of excusable neglect or good 

cause.‖ Federal Rule of Appellate Procedure 4(a)(5) 

authorizes a party to file such a ―Motion for Extension of 

Time.‖ This rule currently provides that:

(A) The district court may extend the time to 

file a notice of appeal if:
18

(i) a party so moves no later than 30 

days after the time prescribed by this 

Rule 4(a) expires; and

(ii) regardless of whether its motion is 

filed before or during the 30 days after 

the time prescribed by this Rule 4(a) 

expires, that party shows excusable 

neglect or good cause.

(B) A motion filed before the expiration of the 

time prescribed in Rule 4(a)(1) or (3) may be ex 

parte unless the court requires otherwise. If the 

motion is filed after the expiration of the 

prescribed time, notice must be given to the 

other parties in accordance with local rules.

(C) No extension under this Rule 4(a)(5) may 

exceed 30 days after the prescribed time or 14 

days after the date when the order granting the 

motion is entered, whichever is later.

Ragguette filed his motion on Friday, March 5, 2010, which 

was 59 days after the entry of the order. Because the 60th 

day was a Saturday, he actually had until the next business 

day, Monday, March 8, 2010, to file his Rule 4(a)(5) motion. 

See, e.g., Fed. R. App. P. 26(a)(1)(C). In any case, Ragguette 

thereby ―filed a timely motion for an order granting an 

extension of time to file a notice of appeal under Fed. R. App. 

P. 4(a)(5).‖ Ragguette, 424 F. App‘x at 155 (footnote 
19

omitted). Because this motion was filed in a timely fashion 

(and the ―good cause‖ component of the rule is not at issue 

here),2the basic question now before us is whether or not the 

 

2

 The good cause standard ―applies in situations in 

which there is no fault – excusable or otherwise.‖ Fed. R. 

App. 4 (Advisory Committee‘s Notes on 2002 Amendments). 

Courts, including our own, historically held that the ―good 

cause‖ language in Rule 4(a)(5) was inapplicable if the 

request for the extension was made after the period for filing 

a timely notice of appeal expired. See, e.g., Consol. 

Freightways Corp. of Del. v. Larson, 827 F.2d 916, 918 n.3 

(3d Cir. 1987) (explaining that ―good cause‖ is basis for 

extending time to file appeal ―only if the request is made 

within the original 30 day period for taking the appeal‖ and 

that ―[a]ny request for extension filed after the original period 

has run is governed by the excusable neglect standard‖

(citations omitted)); Fed. R. App. P. 4 (Advisory Committee‘s 

Notes on 2002 Amendments) (describing ―misunderstanding‖ 

whereby ―most of the courts of appeals have held that the 

good cause standard applies only to motions brought prior to 

the expiration of the original deadline‖). The rule was 

amended in 2002 to make clear that any that any such 

interpretation is mistaken and that ―good cause‖ and 

―excusable neglect‖ are separate bases upon which a Rule 

4(a)(5) extension can be granted regardless of when the 

requesting motion is made. See Fed. R. App. P. 4 (Advisory 

Committee‘s Notes on 2002 Amendments) (―[A] motion for 

an extension filed during the 30 days following the expiration 

of the original deadline may be granted if the movant shows 

either excusable neglect or good cause.‖). 
20

District Court abused its discretion by finding that Ragguette 

(and Rohn) established ―excusable neglect‖ under Rule 

4(a)(5). We must answer this question in the affirmative.

 In our previous ruling in this case, we turned to the 

factors identified by the Supreme Court in Pioneer Investment 

Services Co. v. Brunswick Associates Limited Partnership, 

507 U.S. 380 (1993). The Court considered the meaning of 

the term ―excusable neglect‖ in the specific context of a 

bankruptcy rule permitting a late filing of a proof of claim by 

a creditor if the failure to comply with the deadline (or ―bar 

date‖) was the result of excusable neglect. Id. at 382-83. 

Most significantly, it emphasized that the whole notion of 

excusable neglect implicates an equitable inquiry and thereby 

went on to provide a number of factors to be taken into 

account in this analysis:

This leaves, of course, the Rule‘s 

requirement that the party‘s neglect of the bar 

date be ―excusable.‖ It is this requirement that 

we believe will deter creditors or other parties 

from freely ignoring court-ordered deadlines in 

the hopes of winning a permissive reprieve 

under Rule 9006(b)(1). With regard to 

determining whether a party‘s neglect of a 

deadline is excusable, we are in substantial 

agreement with the factors identified by the 

Court of Appeals. Because Congress has 

provided no other guideposts for determining 

what sorts of neglect will be considered 

―excusable,‖ we conclude that the determination 
21

is at bottom an equitable one, taking account of 

all relevant circumstances surrounding the 

party‘s omission. These include, as the Court 

of Appeals found, the danger of prejudice to the 

debtor, 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.

Id. at 395 (footnotes omitted) (citations omitted). ―Although 

inadvertence, ignorance of the rules, or mistakes construing 

the rules do not usually constitute  ̳excusable‘ neglect, it is 

clear that  ̳excusable neglect‘ under [Federal Rule of Civil 

Procedure] 6(b) [allowing district courts to enlarge the period 

of time] is a somewhat  ̳elastic concept,‘ and is not limited 

strictly to omissions caused by circumstances beyond the 

control of the movant.‖ Id. at 392 (footnotes omitted). On 

the other hand, the neglect of both the party as well as the 

party‘s own attorney must be taken into account, and the 

Pioneer Court accordingly rejected the circuit court‘s 

suggestion that it would be improper to penalize a party for 

the omissions of counsel. Id. at 396-97.

The Supreme Court noted that the debtor did not 

challenge the bankruptcy court‘s findings concerning the 

creditors‘ good faith and the absence of any danger of 

prejudice to the debtor or of disruption to efficient judicial 

administration. Id. at 397-98. It further indicated that it was 

not inclined to unsettle factual findings entered by a 

bankruptcy court and upheld by both the district and circuit 
22

courts on appeal. Id. In fact, the bankruptcy court observed 

that the debtor‘s reorganization plan had taken into account 

the late claims. Id. In the absence of any evidence of 

prejudice, disruption, or bad faith, ―the unusual form of notice 

[of the bar date] employed in this case requires a finding that 

the neglect of respondents‘ counsel was, under all the 

circumstances,  ̳excusable.‘‖ Id. at 398-99. The Pioneer

Court also noted that counsel was still ―remiss in failing to 

apprehend the notice,‖ and it accorded ―little weight to the 

fact that counsel was experiencing upheaval in his law 

practice at the time of the bar date‖ in assessing his 

―culpability.‖ Id. at 398.

We have applied Pioneer‘s equitable approach in a 

variety of circumstances, including proceedings under Rule 

4(a)(5). See, e.g., In re Diet Drugs Prods. Liab. Litig., 401 

F.3d 143, 153-54 (3d Cir. 2005). However, even prior to the 

Supreme Court‘s opinion, we addressed at some length the 

―excusable neglect‖ concept in the specific context of a 

motion for an extension of time to file a notice of appeal 

pursuant to Rule 4(a)(5).

In Consolidated Freightways Corp. of Del. v. Larson, 

827 F.2d 916 (1987), the Pennsylvania Attorney General‘s 

Office prepared a notice of appeal in a Middle District of 

Pennsylvania case on December 18, 1986, one day before the 

30-day limit for filing a notice of appeal expired. Id. at 917. 

However, the notice of appeal incorrectly identified the 

district as the Eastern District of Pennsylvania. Id. Instead of 

being hand delivered to the Middle District Clerk‘s Office in 

Harrisburg (which was actually adjacent to the Attorney 
23

General‘s Office), it was mailed to the Eastern District 

Clerk‘s Office (which received the document on December 

22, 1986 and then forwarded it to the Middle District, where 

it arrived on December 24, 1986). Id. When notified by the 

Third Circuit Clerk‘s Office of a possible procedural defect, 

counsel immediately applied for a 5-day extension of time. 

Id. at 917-18. The district court denied this motion, but we 

concluded that ―the district court erred as a matter of law in 

its rigid application of 4(a)(5).‖ Id. at 918.

Rejecting the district court‘s attempt to establish a per 

se standard, we emphasized that the rule ―requires a case-bycase analysis‖ as well as specific findings by the district court 

regarding ―the reasons underlying counsel‘s inadvertence.‖ 

Id. at 919. Noting the existence of ―a qualitative distinction 

between inadvertence which occurs despite counsel‘s 

affirmative efforts to comply and inadvertence which results 

from counsel‘s lack of diligence,‖ we went on to provide a 

non-exclusive list of factors to guide the district court‘s 

exercise of discretion:

Although every case must be examined 

on an ad hoc basis and it is impossible to 

compose an exhaustive list of factors relevant to 

a determination of whether excusable neglect 

has occurred, a thoughtful analysis of this issue 

in a particular context will, at a minimum, 

require a weighing and balancing of the 

following factors: (1) whether the inadvertence 

reflects professional incompetence such as 

ignorance of the rules of procedure, Campbell 
24

v. Bowlin, 724 F.2d 484 (5th Cir. 1984) (failure 

to read rules of procedure not excusable); (2) 

whether the asserted inadvertence reflects an 

easily manufactured excuse incapable of 

verification by the court, Airline Pilots v. 

Executive Airlines, Inc., 569 F.2d 1174 (1st Cir. 

1978) (mistake in diarying counsel‘s calendar 

not excusable); (3) whether the tardiness results 

from counsel‘s failure to provide for a readily 

foreseeable consequence, United States v. 

Commonwealth of Virginia, 508 F.Supp. 187 

(E.D. Va. 1981) (failure to arrange coverage 

during attorney‘s vacation which encompassed 

end of appeal period not excusable); (4) 

whether the inadvertence reflects a complete 

lack of diligence, Reinsurance Co. of America, 

Inc. v. Administratia, 808 F.2d 1249 (7th Cir. 

1987); or (5) whether the court is satisfied that 

the inadvertence resulted despite counsel‘s 

substantial good faith efforts toward 

compliance.

 

Id. at 919.

We then determined, inter alia, that: (1) the attorney‘s 

mistake was not the result of professional incompetence; (2) 

he was not attempting to create some sort of facile excuse to 

extend the time to appeal and, on the contrary, gained nothing 

from his error; (3) this type of human error, though avoidable, 

was not readily foreseeable; and (4) the attorney otherwise 

acted with due (if not perfect) diligence and in good faith in 
25

attempting to comply with Rule 4(a)(5) (including, among 

other things, drafting the notice of appeal within the 30-day 

limit, serving the notice of appeal on opposing counsel in a 

timely fashion, and then expeditiously filing a motion for an 

extension of time). Id. at 919-20. ―This court interprets Rule 

4(a)(5) to require a finding of excusable neglect in those 

instances where the court, after weighing the relevant 

considerations is satisfied that counsel has exhibited 

substantial diligence, professional competence and has acted 

in good faith to conform his or her conduct in accordance 

with the rule, but as a result of some minor neglect, 

compliance was not achieved.‖ Id. at 920. While 

emphasizing that the mistake there could have been detected 

by careful proofreading, we believed that even the most 

diligent attorneys are subject to these kinds of common 

human errors and, in particular, do not need to be reminded to 

address their mail accurately or to caption their cases 

properly. Id. Even though the district court‘s approach might 

have effectively deterred incompetence or callous disregard 

for the rules in some circumstances, it would serve ―little 

deterrent purpose‖ in the context of human errors that are 

―not readily capable of regulatory control.‖ Id. We further 

noted that, ―[w]here as here the delay was minimal, and 

where the court has determined that the delay was not the 

result of any bad faith but rather occurred despite counsel‘s 

substantially diligent efforts at compliance, the judicial 

interest in deciding cases on the merits outweighs the interests 

in finality.‖ Id. However, we also acknowledged that our 

opinion ―does not require the absolution of any and all 

clerical errors committed by counsel as excusable neglect,‖ 

and we were confident that ―[t]he threshold requirement of 
26

establishing substantial good faith efforts to comply readily 

eliminates the most common errors from the excusable 

neglect analysis.‖ Id. at 921. Declining to hold that the 

failure to proofread a caption must be deemed to be 

inexcusable in each and every case, we held that such a 

failure was excusable given the factual context presented. Id.

We agree with Premier that the factors identified in 

Consolidated should still be considered in applying the 

overall approach subsequently set forth by the Supreme Court 

in Pioneer. In fact, we actually cited our Consolidated

opinion with approval in our prior ruling in this case vacating 

the District Court‘s order and remanding for further 

proceedings. See Ragguette, 424 F. App‘x at 156. 

Furthermore, our reasoning in Consolidated essentially

anticipated the approach taken by the Supreme Court itself, 

and we note that the Pioneer Court even acknowledged our 

Consolidated opinion as an example of a circuit court 

adopting ―a more flexible approach,‖ Pioneer, 507 U.S. at 387 

n.3. It therefore is not surprising that we have continued to 

cite to—and quote with approval from—Consolidated as well 

as our subsequent decision in Dominic v. Hess Oil V.I. Corp., 

841 F.2d 513, 517 (3d Cir. 1988) (turning, in service of 

process context, to five express factors identified in 

Consolidated as well as sixth factor for ―whether the 

enlargement of time will prejudice the opposing party‖). For 

instance, we indicated that ―[t]hese six factors, announced in 

Dominic before Pioneer was decided, present a more specific 

application of the general considerations later announced by 

the Supreme Court in Pioneer.‖ In re Orthopedic Bone Screw 

Prods. Liab. Litig., 246 F.3d 315, 323 (3d Cir. 2001). In 
27

other words, ―the Dominic factors that were not restated in 

Pioneer were instead subsumed in the more general 

consideration of  ̳reason for the delay.‘‖ Id. (quoting In re 

Cendant Corp. Prides Litig., 233 F.3d 188, 196 n.8 (3d Cir. 

2000)); see also, e.g., Cendant, 233 F.3d at 197 n.8 

(―Additionally, the District Court mentioned the three factors 

we identified in a case predating Pioneer, Dominic v. Hess 

Oil V.I., 841 F.2d at 517 (inadvertence reflecting professional 

incompetence, excuse incapable of verification, complete lack 

of diligence), though these are arguably integrated within the 

fourth Pioneer factor,  ̳reason for the delay.‘‖). 

Ragguette, however, contends that, because Premier 

had argued in the prior appeal in this case that the evidence 

was legally insufficient to show excusable neglect, this Court 

necessarily determined in its prior ruling that this evidence 

was sufficient for the District Court to rule in his favor. 

Simply put, Ragguette is reading too much into our prior 

ruling. We merely vacated the District Court‘s denial and 

remanded for further proceedings because ―the District Court 

disposed of Ragguette‘s motion  ̳without an opinion, without 

a reason, and more importantly, without reference to the 

Pioneer four-factor balancing standard.‖ Ragguette, 424 F. 

App‘x at 157 (quoting Diet Drugs, 401 F.3d at 154). It is 

now our task to ascertain whether the District Court 

appropriately exercised its discretion by finding that ―the 
28

neglect at issue in this case was excusable under the Pioneer

standard.‖3 Id. (footnote omitted). 

 

3 We further note that Premier argues at some length 

that neither Rohn nor her client ever really intended to pursue 

an appeal, at least before the 30-day period to file a notice of 

appeal had already expired. In fact, it vigorously attacks 

Rohn‘s own motivations, suggesting, for instance, that 

―counsel for Ragguette appeared more concerned with 

avoiding fees and costs being assessed against her.‖ 

(Premier‘s Brief at 26.) Based, among other things, on the 

screen shot, the annotated memorandum opinion, and the 

subsequent e-mail exchange between Rohn and Cameron, it 

appears that a prior intention to pursue an appeal did exist in 

this case. We recognize that that ―the timing of the Rule 4 

motion is consistent with the defendant‘s suspicion.‖ 

Ragguette, 2011 WL 2359920, at *1. Likewise, Rohn‘s 

return of documents to Ragguette is suspicious given that 

such documents would be useful for the appeal that she 

professed she intended to file. Nevertheless, we believe that 

the District Court did not abuse its discretion by finding that 

there was ―no evidence to confirm‖ Premier‘s suspicion that 

Rohn was acting in a retaliatory manner. Id.
29

 

Premier also argues ―that the absence of a 

notice of appeal within 60 days is a factor in the Pioneer test 

as it pertains to the length of the delay, the reason for the 

delay and whether counsel acted in good faith and the 

prejudice to Premier for the delay.‖ (Premier‘s Brief at 26.) 

For instance, Premier asserts that the delay at issue here ―was 

from January 5, 2010 to June 8, 2011.‖ (Id. at 30.) While 

these kinds of considerations do not appear to be totally 

irrelevant to the Pioneer inquiry, we note that Premier itself 

acknowledges that this Court ―has already ruled that for the 

purpose of the motion for extension of time a notice of appeal 

is not required within the 60 days.‖ (Id. at 26.) Observing 

that any subsequent delay was largely caused by the judicial 

proceeding itself, the District Court appropriately focused on 

―the circumstances as they existed on March 2, 2010, when 

the plaintiff filed his Rule 4(a)(5) motion.‖ Ragguette, 2011 

WL 2359920, at *1.

 
30

We begin, like the District Court, with the ―reason for 

the delay‖ factor. We agree with Premier that the District 

Court abused its discretion in its evaluation of this particular 

factor. We accordingly must reject Ragguette‘s theory that 

there was a reasonable explanation for the delay and that this 

delay resulted from various circumstances beyond the control 

of his counsel. Simply put, it cannot be said that Ragguette‘s 

attorney ―has exhibited substantial diligence, [and] 

professional competence, . . . but as the result of some minor 

neglect, compliance was not achieved.‖ Consolidated, 827 

F.2d at 920. In addition, Ragguette‘s counsel clearly ―fail[ed] 

to provide for . . . readily foreseeable consequence[s].‖ Id. at 

919 (citations omitted). 

 

Because we ultimately conclude that the District 

Court abused its discretion by finding that Ragguette 

established excusable neglect, we need not—and do not 

reach—the various evidentiary challenges raised by Premier 

in its appeal (i.e., challenging the unsworn statements made 

by Rohn in the motion papers as well as at the hearing itself). 

On the other hand, we do reject Ragguette‘s theory that the 

Rohn-Cameron e-mail chain was covered by the attorneyclient privilege, protected by the attorney work product 

doctrine, and had been obtained pursuant to an improper 

order issued by the District Court in conjunction with a 

consolidated recusal motion. We note that, among other 

things, Ragguette did not object to the submission of these 

documents to the District Court in connection with his Rule 

4(a)(5) motion, and, on the contrary, Rohn actually relied on 

this documentation at the Rule 4(a)(5) hearing. 
31

Initially, the District Court found that the failure to file 

the notice of appeal was caused by attorney inadvertence—

specifically Rohn‘s own failure ―to complete an additional 

step in the computer process in her office,‖ which meant that 

―her staff never received the instructions to perfect an 

appeal.‖ Ragguette, 2011 WL 2359920, at *1. We add that it 

appears highly doubtful that the firm‘s relatively new motions 

or appellate attorney would have understood that she was to 

have prepared and filed a notice of appeal based on the 

following cursory comment on the annotated memorandum 

opinion: ―*Scan in as  ̳thoughts Re appeal‘.‖ (A357.) In 

fact, the associate apparently did exactly what the comment 

told her to do—she had the document scanned. It is also 

unclear when exactly Cameron left the firm and how long her 

replacement had been working there by the time the notice of 

appeal had to be filed. In any case, we believe that a 

reasonably competent attorney would have exercised more 

supervision and control over a purportedly new and 

inexperienced subordinate. Rohn, at the very least, should 

have done more than make a number of vague annotations on 

the district court‘s ruling and should have anticipated that a 

relatively new employee would need more direction. We also 

are troubled by the fact that Rohn essentially and rather 

conveniently sought to shift at least some of the blame from 

herself to another person (who actually was no longer with 

the firm by the time of the Rule 4(a)(5) hearing, did not 

submit any declaration in support of the motion, and did not 

appear at the hearing itself).

Rohn likewise acknowledged that she personally failed 

to create the requisite ―computer task‖ as per her firm‘s usual 
32

practices. She thereby clearly carried at least partial 

responsibility for the breakdown in her firm‘s internal 

procedures. In fact, the failure to create the critical computer 

task meant that this system was never really triggered in the 

first place.

We add that the firm‘s own procedures had some 

serious deficiencies of their own. As noted above, the proper 

completion of a computer task was evidently necessary to 

trigger this computer tracking system in the first place. 

Turning to the more significant matter of the ECF system, we 

do acknowledge that attorneys, especially well-established 

lawyers like Rohn, could have difficulties adjusting to this 

mechanism of electronic case filing (as well as other 

computer procedures). However, it is also undisputed that 

Rohn herself had previously registered as an ECF user 

sometime before the beginning of 2010. Rohn (or at least 

someone in her office using her ECF account) has actually 

filed numerous documents in this heavily litigated case via 

the ECF system since September 2007. If a notice of appeal 

had actually been filed (as Rohn evidently believed it had 

been), a notice of such a filing would have immediately been 

sent via e-mail to any and all attorneys who had previously 

entered an appearance in the District Court proceeding. 

Accordingly, Rohn should have known that no notice of 

appeal had been filed because neither Rohn nor any other 

attorneys from her firm who had entered an appearance in this 

case ever received any notice of such a filing. Having not 

received such a notice, any reasonably competent attorney 

would have looked into whether a notice of appeal had been 
33

properly filed—especially where such a critical task had been 

assigned to a relatively new subordinate.

At the Rule 4(a)(5) hearing, Rohn actually 

acknowledged that ―all the ECF filings in my office, even 

directed to me internally through technology, go to the 

attorney who is actually in charge of monitoring those,‖ and 

that Rohn herself ―wouldn‘t have gotten an ECF back.‖ 

(A440.) At the very least, we believe that such an 

arrangement was highly problematic. In particular, a 

reasonably competent attorney who did not personally receive 

or otherwise look at ECF notices would have to set up some 

sort of additional method of keeping track of filings, 

especially those filings submitted under her own ECF account 

as well as critical filings like a notice of appeal. Such an 

attorney would at least attempt to make sure that a notice of 

appeal had been filed within the applicable 30-day period by, 

for example, simply asking the subordinate whether—and 

when—she had filed this critical document.

In fact, we previously turned to the ECF filing system 

as a basis for rejecting a claim of excusable neglect. In Nara 

v. Frank, 488 F.3d 187 (3d Cir. 2007), we concluded that ―the 

Commonwealth‘s overall negligence in handling the [28 

U.S.C. § 2254 habeas] matter precludes us from finding 

 ̳excusable neglect‘‖ under Federal Rule of Civil Procedure 

60(b) with respect to the Commonwealth‘s failure to file 

timely objections to the magistrate judge‘s report and 

recommendation, id. at 194. We noted, among other things, 

that: ―[A]ttorneys practicing in the Western District of 

Pennsylvania were under a standing order to register with the 
34

Case Management/Electronic Case Files (CM/ECF) system 

by July 1, 2005. If the Commonwealth‘s attorneys had 

complied with that order, they would have received 

immediate electronic notification that the Magistrate Judge 

had issued the R & R and could have accessed it by hyperlink.‖ Id. (footnotes omitted). In turn, ―[t]he 

Commonwealth‘s Attorneys based in Harrisburg were 

required to register in the Middle District of Pennsylvania in 

2003.‖ Id. at 194 n.12 (citation omitted). Because of the lack 

of excusable neglect, we proceeded to apply a plain error 

standard of review. Id. at 193-97.

It is well established that a busy caseload generally 

does not constitute a basis for a finding of excusable neglect. 

See, e.g., Pedereaux v. Doe, 767 F.2d 50, 52 (3d Cir. 1985) 

(―That counsel spent much of the latter period preparing for 

the trial of other matters does not excuse the failure to attend 

to the insubstantial task of filing a notice of appeal.‖). 

Ragguette accordingly denies ever advancing such a theory in 

the first place. But he also continues to highlight his 

counsel‘s busy schedule during the relevant time period. For 

example, Rohn raised the issue of her own caseload at the 

hearing, purportedly in order to provide an explanation as to 

why she would not necessarily have seen a notice of appeal 

before its filing and why she would not have known that no 

such notice had been prepared and filed. We believe that 

Ragguette‘s attorney thereby attempted to draw too fine of a 

distinction. Simply put, the busy caseload was essentially 

offered as an ―excuse‖ for ―the failure to attend to the 

insubstantial task of filing a notice of appeal.‖ Id. We also 

believe that a reasonably competent attorney would have 
35

better managed her own caseload and would have done more 

to make sure that the critical task of properly filing a notice of 

appeal was completed despite how busy she may have been at 

the time.

We likewise determine that Rohn clearly failed to 

exercise reasonable diligence in uncovering the fact that no 

notice of appeal had been filed and then bringing this mistake 

to the attention of the opposing party and the District Court. 

This Court previously rejected the ―contention that Rule 

4(a)(5) provides an absolute 30 day grace period‖ and held 

that ― ̳excusable neglect‘ must be shown up to the actual time 

the motion to extend is filed.‖ Id. at 51. ―It simply is not 

overly burdensome to require a putative appellant, who has 

already missed the 30 day . . . mandatory appeal date of Rule 

4(a)(1) because of  ̳excusable neglect,‘ to file immediately a 

Rule 4(a)(5) motion to extend when the excuse no longer 

exists.‖ Id. at 52. In this case, a reasonably diligent attorney 

certainly could have—and should have—discovered the fact 

that no notice of appeal had been filed (or at least taken steps 

to investigate the matter) when: (1) Premier filed its original 

fee motion on January 13, 2010; (2) Ragguette‘s opposition to 

this fee motion was filed (via the ECF system under Rohn‘s 

own account) on January 28, 2010; (3) the District Court 

entered an order on February 8, 2010 scheduling a hearing on 

the fee motion for February 23, 2010; (4) on February 24, 

2010, the District Court rescheduled the fee hearing for 

March 1, 2010; (5) no ECF notice was ever received 

indicating the filing of a notice of appeal; (6) no ECF notices 

were ever received with respect to a number of documents 

sent out by the District Court‘s Clerk (a receipt for payment 
36

of the requisite filing fee for an appeal) as well as the Third 

Circuit‘s Clerk (the initial case opening letter and the 

assignment of the case caption) immediately after the filing of 

a notice of appeal; and (7) similarly, no ECF notices (or hard 

copies of the documents themselves) were ever received 

indicating that the parties filed various documents due shortly 

after the commencement of an appeal (i.e., entry of 

appearance, disclosure statement, civil appeal information 

statement, concise summary of the case, and transcript 

purchase order).4 Yet Rohn purportedly did not discover that 

 

4

 In passing, Ragguette contends that there was no 

evidence in the record to support Premier‘s representations

that Rohn should have received ECF notices for various 

filings and that, in fact, the record actually established the 

contrary. We, however, must reject his assertions given the 

well-established nature of the procedures at issue here. For 

instance, we observe that the docket sheet for Ragguette‘s 

successful appeal from the District Court‘s initial denial of his 

Rule 4(a)(5) motion indicated that the following documents 

were filed (and served) shortly after the May 20, 2010 filing 

of his notice of appeal via Rohn‘s ECF account: (1) on May 

21, 2010, the receipt for payment of the appellate filing fee; 

(2) on May 26, 2010, the initial case opening letter, the 

assignment of the case caption, and an order advising the 

parties of the Court‘s practice of holding Virgin Islands 

sittings twice a year as well as tentatively listing this case for 

May 2011; (3) on May 28, 2010, an entry of appearance from 

Premier‘s counsel and Premier‘s disclosure statement; (4) on 

June 11, 2010, a follow-up letter from the Third Circuit 

Clerk‘s Office to Rohn requesting the submission of an entry 
37

no notice of appeal had been filed until her preparation for the 

March 1, 2010 fee hearing—approximately a month after the 

deadline for filing a notice of appeal and approximately two 

months after the District Court‘s summary judgment order. 

Nevertheless, she still did not even mention the mistake or the 

possibility of an appeal at the hearing conducted on March 1, 

2010. Even though she claimed that that she did do so 

because she wanted to obtain verification, we must reject 

such an excuse given her prior—and extensive—lack of due 

diligence. We also note that a reasonably competent 

attorney—having just discovered that a notice of appeal had 

not been filed almost a month after the deadline had already 

expired and immediately before a previously scheduled 

hearing—would have exercised more diligence in obtaining 

verification prior to the hearing and would have then brought 

this critical matter to the immediate attention of opposing 

counsel and the judge.

We thereby determine that the District Court erred in 

its assessment of the ―reason for the delay‖ factor. Contrary 

 

of appearance form, a civil case information statement, a 

concise summary of the case, and a transcript purchase order 

on or before June 25, 2010; and (5) on June 25, 2010, an 

entry of appearance from Rohn as well as a civil case 

information statement, concise summary of the case, 

disclosure statement, and transcript purchase order. Again, 

we emphasize that the fact that the ECF filings purportedly 

went to Rohn‘s new motions attorney—and were not 

otherwise received or monitored by Rohn herself—weighs 

against any finding of excusable neglect. 
38

to the District Court‘s characterization, this factor strongly 

weighs against any finding of excusable neglect. We, 

however, must still address the District Court‘s assessment of 

the remaining Pioneer factors. ―Under Pioneer, a court must 

take into account all relevant circumstances surrounding a 

party‘s failure to file, and failing to disprove  ̳reasonable 

control‘ is not necessarily fatal to a petitioner‘s request for 

relief. To state it differently, the  ̳control‘ factor does not 

necessarily trump all the other relevant factors.‖ George 

Harms Constr. Co. v. Chao, 371 F.3d 156, 164 (3d Cir. 2004). 

Therefore, while prejudice to the opposing party, disruption 

of efficient judicial administration, and bad faith are 

frequently absent, the mere fact that ―those factors may nearly 

always favor‖ the moving party does not mean that they can 

be ignored. Id.

We nevertheless must conclude that the other Pioneer

factors, at best, provide only minimal support for the District 

Court‘s ―excusable neglect‖ finding. Accordingly, they are 

clearly insufficient to outweigh the ―reason for the delay‖ 

factor.

It is well established that, as Ragguette points out, ―a 

finding of prejudice should be a conclusion based on facts in 

evidence.‖ In re O‘Brien Envt‘l Energy, Inc., 188 F.3d 116, 

127 (3d Cir. 1999). In other words, prejudice does not consist 

of ―an imagined or hypothetical harm,‖ and, on the contrary, 

prejudice generally occurs where, for instance, the opposing 

party has lost evidence or placed substantial reliance on the 

judgment or there is an increased potential for fraud or 

collusion. Id. The District Court appropriately noted that 
39

Premier would have faced the prospect of a trial even if its 

opponent had filed a notice of appeal within the applicable 

30-day period. ―Nor is there evidence that defendant has 

incurred any significant costs since the entry of judgment, or 

that it will incur significant costs connected to this motion.‖ 

Ragguette, 2011 WL 2359920, at *1. The District Court, 

at the very least, ultimately accorded too much weight to this 

particular factor in the current circumstances. In particular, 

Premier points out that it was certain there would be no 

appeal once the 30-day period to file a notice of appeal had 

expired and no notice of appeal (or Rule 4(a)(5) motion) had 

been either filed or served within this 30-day period. Viewed 

in isolation, this contention overlooks a number of wellestablished mechanisms available to pursue an appeal even in 

absence of an otherwise timely notice of appeal, including 

Rule 4(a)(5) itself. We, however, are not confronted here 

with the more typical situation of an appellant who, while still 

managing to serve the notice of appeal on the opposing party 

in a timely fashion, failed to file a notice of appeal with the 

district court within the generally applicable 30-day period 

due to some sort of unfortunate oversight. As we have 

already discussed in some detail, Rohn never indicated to 

opposing counsel or the District Court the possibility of an 

appeal until the Rule 4(a)(5) motion was filed on March 5, 

2010. In fact, a fee hearing was actually held before the 

District Court only days before the expiration of the 60-day 

period established by Rule 4(a)(5), and, yet again, not a word 

was said about any possible appeal. Given these 

circumstances, Premier could have been led to believe that its 

adversary did not intend to appeal from the District Court‘s 

order granting its summary judgment motion and that the only 
40

remaining issue in the litigation was the subsidiary question 

of fees and costs.

We reach the same basic conclusion with respect to the 

―length of the delay and its potential impact on the judicial 

proceedings‖ factor. The length of the delay must be 

examined in ―absolute terms‖ or in an ―absolute sense,‖ 

meaning that the extent of the delay should be considered in 

isolation. O‘Brien, 188 F.3d at 129-30; see also, e.g., 

Orthopedic Bone Screw, 246 F.3d at 325. The District Court 

reasonably observed that ―[t]he delay, measured at the time 

Ragguette filed his motion, was twenty-nine days, but within 

the time for filing the Rule 4 motion.‖ Ragguette, 2011 WL 

2359920, at *1. While it appropriately found that such a 

delay ―was not inordinate,‖ id., this finding must still be 

weighed against the other Pioneer factors. We also cannot

overlook the fact that Ragguette filed his motion on Friday, 

March 5, 2010—the 59th day of the 60-day period. He only 

had one more business day—Monday, March 8, 2010—left to 

seek relief under Rule 4(a)(5). In other words, this is not a 

case where a party filed the Rule 4(a)(5) motion within the 

original 30-day period for filing a notice of appeal or even 

just a few days after this initial period had expired.

Finally, we agree with the District Court that neither 

Ragguette nor Rohn appeared to act in bad faith, at least in 

the specific sense of engaging in outright misconduct or 

inequitable behavior. Nevertheless, we still cannot overlook 

the manifest lack of diligence on the part of Ragguette‘s 

attorney and, in particular, the multiple opportunities she had 

to discover the failure to file a notice of appeal and then to 
41

attempt to remedy such a clear and serious mistake. Most 

significantly, even though Rohn finally discovered what 

happened when preparing for the March 1, 2010 fee hearing, 

she did not even mention this discovery or a possible appeal 

at the hearing itself. While her intent to obtain verification 

was perhaps understandable, such a justification does not 

really carry much weight here, especially given the clear 

deficiencies with respect to how Rohn and her firm handled 

the filing of a notice of appeal, her lack of due diligence, and 

her status as an experienced litigator. Even if there was ―no 

reason to believe that [Rohn] ever acted in bad faith,‖ we 

cannot conclude that she was ―so careful or vigilant as to 

overcome the weight‖ of the ―reason for the delay‖ factor. In 

re Am. Classic Voyages Co., 405 F.3d 127, 134 (3d Cir. 

2005) (determining that bankruptcy court did not abuse 

discretion by finding that failure to file claim by bar date did 

not qualify as excusable neglect and also specifically stating 

that party‘s care and vigilance were not sufficient to 

overcome weight of other factors—especially ―second‖ 

factor).

In the end, we must conclude that the District Court 

abused its discretion. While we acknowledge the deferential 

nature of our review, it is clear that the ―reason for the delay‖ 

factor strongly weighs against any finding of excusable 

neglect. It is also clear that the remaining factors, at best, 

provide only minimal support for such a finding and thereby 

cannot overcome the weight of the ―reason for the delay‖ 
42

factor.5 In other words, the Court is confronted in this case 

with more than the simple and understandable ―failure to 

proofread a caption‖ at issue in Consolidated. 827 F.2d at 

921. In fact, counsel—unlike her counterpart in 

Consolidated—never even managed to draft a notice of 

appeal within the applicable 30-day period, and, accordingly, 

there was no ―timely service of the Notice of Appeal upon 

opposing counsel.‖ Id. at 920. We likewise are not dealing 

here with anything comparable to Pioneer‘s ―unusual form of 

notice.‖ Pioneer, 507 U.S. at 399.

More broadly, we note that a ruling in favor of 

Ragguette in the current circumstances could be read as 

condoning and even rewarding otherwise avoidable 

mistakes—and even outright incompetence—on the part of 

even experienced attorneys. Far from deterring such 

mistakes, such a signal could lead to yet more claims of 

excusable neglect premised on attorney incompetence in 

connection with the critical—yet relatively simple—step of 

filing a notice of appeal within the applicable time period for 

doing so.

IV.

 

5 Given this assessment of the Pioneer factors, we need 

not—and do not—decide whether a prior panel of our Court 

was correct to suggest in dicta that the ―danger of prejudice‖ 

factor constitutes ―the most important [factor] of all.‖ Diet 

Drugs, 401 F.3d at 154. 
43

For the foregoing reasons, we determine that the 

District Court improvidently granted Ragguette‘s motion for 

an extension of time to file a notice of appeal under Federal 

Rule of Appellate Procedure 4(a)(5). We accordingly will 

dismiss Ragguette‘s appeal for lack of appellate jurisdiction.