After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

F I LED

United States Court of Appeals

Tenth Circuit

February 21, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CRAIG MAGRAFF,

 Plaintiff-Appellant,

v. 

LOWES HIW, INC.,

 Defendant-Appellee.

Nos. 05-1537 & 06-1031

(D.C. No. 03-CV-2506-MSK-CBS)

(D. Colo.)

ORDER AND JUDGMENT

*

Before TACHA, Chief Judge, O’BRIEN, and McCONNELL, Circuit Judges.

Plaintiff Craig Magraff appeals the district court’s orders denying his Fed.

R. App. P. 4(a)(5) motion to extend the thirty-day time in which to file a notice of

appeal and also his motion for reconsideration, which the district court treated as

a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). We

affirm.
This pleading was captioned “Plaintiff’s First Amended Motion for 1

Extension of Time, Nunc Pro Tunc.” Magraff had filed a substantially identical

earlier version of the motion on October 31, 2005, which the district court denied

without prejudice for failure to comply with local rules.

We have consolidated Magraff’s appeals numbered 05-1537 (December 2, 2

2005, notice of appeal) and 06-1031 (January 19, 2006, notice of appeal) and

dispose of both through this order and judgment.

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Magraff’s complaint alleged various claims against his former employer,

defendant Lowes HIW, Inc. (Lowes). The district court granted Lowes’ summary

judgment motion and entered judgment on September 19, 2005. Pursuant to Rule

4(a)(1)(A), Magraff had thirty days from the entry of judgment – that is, until

October 19, 2005 – to file his notice of appeal. However, Magraff’s counsel

mistakenly calendared the due date as October 20, 2005, and filed the notice of

appeal one day late. We dismissed that appeal for lack of jurisdiction. Magraff v.

Lowes HIW, Inc., No. 05-1483 (10th Cir. Dec. 30, 2005) (order dismissing

appeal).

After discovering the docketing error, Magraff moved on November 2,

2005, for an extension of time to file his notice of appeal. The district court 1

denied this motion on November 9, 2005. Magraff then moved for

reconsideration on November 23, 2005. On December 2, 2005, he filed a notice

appealing the district court’s November 9, 2005 order. The district court denied

Magraff’s motion for reconsideration on January 10, 2006, and Magraff filed a

notice appealing the denial of reconsideration on January 19, 2006.2
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Magraff argues that the district court erroneously denied his motion for an

extension under Rule 4(a)(5)(A), pursuant to which the district court may extend

the thirty-day appeal time if a party shows excusable neglect or good cause. See

Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004). In his motions,

Magraff alternately blamed his failure to file a timely notice of appeal first on his

counsel’s misapprehension of the deadline, and later on his counsel’s illness on

the actual deadline date for the notice to be filed. Magraff explained in his

motion for reconsideration that his counsel intended to file the notice of appeal on

the due date, but his counsel’s illness prevented him from doing so. Magraff also

indicated that the only other attorney familiar with his case had not been tasked

with preparing the notice of appeal, and in any event was also unavailable on the

deadline date. Thus, although Magraff admits his counsel mistakenly believed he

had one additional day to file the notice of appeal, he argues that the delay

ultimately resulted not from that error, but from counsel’s illness on the actual

due date, which was beyond his or his counsel’s control.

A district court’s order denying a motion to extend the time for filing a

notice of appeal is itself an appealable final judgment, which this court reviews

only for abuse of discretion. Id. This court likewise reviews a district court’s

ruling on a Rule 59(e) motion for abuse of discretion. Brown v. Presbyterian

Healthcare Servs., 101 F.3d 1324, 1331 (10th Cir. 1996). “Under the abuse of

discretion standard, a trial court’s decision will not be disturbed unless the
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appellate court has a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Id.

The district court correctly considered the appropriate factors in

determining whether Magraff demonstrated excusable neglect justifying an

extension of time: (i) the danger of prejudice to the non-movant; (ii) the length of

the delay and its potential impact on judicial proceedings; (iii) the reason for the

delay, including whether it was in the reasonable control of the movant; and

(iv) whether the movant acted in good faith. See Bishop, 371 F.3d at 1206. As

the district court noted, the neglect need not arise from circumstances beyond the

movant’s control, but inadvertence or mistake in construing the rules does not

usually constitute excusable neglect. See City of Chanute v. Williams Natural

Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994). The district court found that three

of the four factors weighed in Magraff’s favor, but ultimately determined that

Magraff’s proffered reasons for the delay were not sufficient to establish

excusable neglect under the third factor. This court has held that this is “perhaps

the most important single factor.” Id.

The alternative justification of “good cause” under Rule 4(a)(5) is a more

narrow standard, employed where the “excusable neglect” analysis is

inappropriate. Bishop, 371 F.3d at 1207. Good cause arises where there is no

fault, excusable or otherwise, to be assessed, and the need for an extension results
-5-

from forces outside the control of the movant. Id. The district court did not find

that the circumstances of Magraff’s delay constituted good cause.

In denying Magraff’s motions for an extension and for reconsideration, the

district court noted its assumption that attorneys prefer to file pleadings early,

rather than on the date they are due. The district court reasoned, “The fact that

unexpected circumstances frequently frustrate these intentions is why the Court

must examine not whether the attorney intended to take some act that would have

resulted in a timely filing, but rather, examine the actual reason why the deadline

was not met.” Aplt. App. at 92-93. The district court concluded that the actual

reason why the notice of appeal was not timely filed was counsel’s error in

calendaring the deadline. It distinguished circumstances where the attorney’s

illness directly caused a scheduling error or prevented a timely filing “in

accordance with the attorney’s recognition of the correct deadline.” Id. at 93. 

The district court found that counsel’s illness was simply coincidental to the

calendaring error and that the circumstances in this case constituted neither

excusable neglect nor good cause.

We find that the district court properly applied the standards for

determining whether there was excusable neglect or good cause and did not abuse

its discretion in denying Magraff’s motion for an extension and motion for

reconsideration. We note that Magraff’s counsel deliberately waited until the end

of the thirty-day period to file the notice of appeal, increasing the risk that
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unforeseen events, including illness, might interfere with his ability to meet the

deadline. The record does not show that counsel was ill for the entire period

during which the appeal could have been filed. Moreover, the notice of appeal

required by Fed. R. App. P. 3(c) is a simple document to prepare, which does not

require particular familiarity with the case. Nonetheless, there is no indication in

the record that Magraff’s counsel made any effort, either before or during his

illness, to seek the assistance of other attorneys in his office, or even his

secretary, to complete the filing on or before his intended day. See, e.g., Gibbons

v. United States, 317 F.3d 852, 855 (8th Cir. 2003) (affirming district court’s

denial of extension request based upon counsel’s illness, where the illness did not

span the entire appeal period and counsel took no steps to have cases managed by

others during illness). On this record, we do not find an abuse of discretion in the

district court’s conclusion that the calendaring error caused the delay and did not

constitute excusable neglect or good cause to justify an extension to file the

notice of appeal.

We acknowledge that this is a harsh result; abuse of discretion is, however,

a very deferential standard of review. When we apply this standard, “we defer to

the trial court’s judgment because of its first-hand ability to view the witness or

evidence and assess credibility and probative value.” Moothart v. Bell, 21 F.3d

1499, 1504 (10th Cir. 1994) Here, we do not find that the district court’s

judgment was “manifestly unreasonable.” Id.
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The judgment of the district court is affirmed.

Entered for the Court

Terrence L. O’Brien

Circuit Judge