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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kasper Smoke Kastle LLC,

Plaintiff,

v. 

Atlantic Casualty Insurance Company,

Defendant.

No. CV-18-00950-PHX-JAT

ORDER 

Pending before the Court are Defendant Atlantic Casualty Insurance Company’s 

(“Defendant”) Motion for Extension of Time to File Appeal, (Doc. 162), and Plaintiff 

Kasper Smoke Kastle LLC’s (“Plaintiff”) joinder in that motion. (Doc. 163). The Court 

now rules on these requests. 

Plaintiff filed an untimely notice of appeal 31 days after the Clerk of the Court 

entered a final judgment in this case. (Doc. 154). According to Plaintiff, its delay stemmed 

from “a unique set of circumstances.” (Doc. 163 at 3). Apparently, during January and 

early February, Plaintiff’s trial counsel had been contemplating leaving their law firm, 

Merlin Law Group. (Id. at 2). During that time, “it was not clear whether Plaintiff would 

be represented by [trial counsel] or whether Plaintiff would continue to be represented by 

Merlin Law Group.” (Id.). By February 11th, trial counsel had left the law firm, taking their 

staff—but not this case—with them. (Id.).1 Those who left Merlin Law Group were 

 

1 There are several irregularities with Plaintiff’s representation of the record. For one thing, 

trial counsel is still listed as counsel on the Court’s docket. Moreover, it is not clear on 

what basis Plaintiff asserts that “Michael Ponzo and Nicholas Smith[] substituted in as 

counsel on behalf of Plaintiff[] on February 20[th].” (Doc. 163 at 2). Mr. Ponzo first filed 

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evidently the only employees who had the deadline to appeal calendared, and the deadline 

was not re-calendared for the replacement attorneys prior to their exit. (See id.). One day 

after the deadline lapsed, the replacement attorneys found an e-mail from a former 

paralegal indicating the deadline to appeal was on February 20th. (Id.). Plaintiff filed its 

notice of appeal that same day. (Id.).

The Ninth Circuit Court of Appeals accordingly ordered Plaintiff to show cause as 

to why it failed to timely file its notice of appeal. (Doc. 162 at 2). The show-cause order 

prompted Defendant to seek an extension of the deadline to file its notice of appeal. (Id.). 

Defendant states that it had mistakenly calendared the deadline to appeal for February 21st. 

(Id. at 1).2It also provides that it had been planning to cross appeal and was thus under the 

impression it would have an additional 14 days to file its own notice of appeal after Plaintiff

had done so under Federal Rule of Appellate Procedure (“FRAP”) 4(a)(3). (Id.). Since 

Plaintiff’s untimely notice meant that plan was no longer feasible, Defendant asked for an 

extension. (Id.). Plaintiff joined the motion soon after. (Doc. 163). The Ninth Circuit Court 

of Appeals has since remanded Plaintiff’s untimely appeal to this Court, for the limited 

purpose of ruling on Plaintiff’s timely request for additional time. (Doc. 165 at 1).3

When a party has allowed the deadline to file a notice of appeal to lapse, a court 

may grant an extension of time “if that party shows excusable neglect or good cause.” 

FRAP 4(A)(5)(a)(ii). To determine whether excusable neglect exists, a court must at least 

 

a motion on February 4th. (Doc. 144). Mr. Smith first filed a document on February 18th. 

(Docs. 151, 152). In addition, attorney Michael Duffy—who represented Plaintiff at trial—

continues to represent Plaintiff and to work at Merlin Law Group, so it is not entirely 

accurate to say that the attorneys responsible for trial left the firm. 

2 Without any indication of the basis for this claim, Defendant states that “[i]t appears 

[Plaintiff’s] counsel also erroneously believed that there were only [30] days in between 

January 21, 2020 and February 21, 2020.” (Doc. 162 at 2 n.1). The Court is also confused 

by Defendant’s claim that the Clerk of the Court’s entry of a final judgment four days after 

the jury’s verdict was “an unusually quick turnaround that further caught [Defendant] off 

guard.” (Id. at 2). It is not at all clear how the Clerk’s turnaround time could have 

diminished the ability of Defendant to act after the entry of judgment, particularly since it

claims it was planning on filing a cross appeal anyway.

3 The order remanding to this Court refers to a timely motion for an extension that Plaintiff 

filed. (Id. at 1). To be clear, it was actually Defendant who filed a motion, Plaintiff filed a 

joinder to that motion. (Doc. 163).

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consider the so-called Pioneer factors, including: “(1) the danger of prejudice to the nonmoving 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 moving party’s conduct was in good faith.” Pincay v. 

Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (citing Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Because excusable neglect is an elastic and 

equitable concept, it must be analyzed in context. Id. at 859. Even if the reason for delay is 

rather weak, the Court should grant an extension unless that reason “is so egregious that it 

outweighs the remaining factors.” M.D. ex rel. Doe v. Newport-Mesa Unified Sch. Dist., 

840 F.3d 640, 643 (9th Cir. 2016) (per curiam).

Three of the Pioneer factors support granting Plaintiff an extension of time here. 

First, no possibility of prejudice exists because the parties are in agreement that the 

deadline should be extended. Second, Plaintiff filed its notice of appeal just one day late 

and moved for an extension at least reasonably quickly after learning that the deadline had 

lapsed. Moreover, any failure to move more hastily will not have a significant impact on 

any judicial proceedings given this procedural context. Third, nothing suggests that 

Plaintiff acted in bad faith by failing to timely file its appeal, nor can the Court conceive 

of any possible tactical edge that Plaintiff might have won for itself by missing the deadline. 

Moreover, taking Plaintiff’s word for it, its attorneys could not possibly have acted in bad 

faith because they were not even aware of when the deadline was until after it had already 

expired. Rather, the Court is confident that the mistake “resulted from negligence and 

carelessness, not from deviousness or willfulness.” Lemoge v. United States, 587 F.3d 

1188, 1197 (9th Cir. 2003) (quoting Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th 

Cir. 2002)).

To be sure, Plaintiff does not advance a particularly compelling reason for its delay. 

In fact, the Ninth Circuit Court of Appeals has noted that Pioneer itself “gave little weight

to ‘upheaval in [a] law practice’ as a compelling reason for a filing delay.” Los Altos El 

Granada Inv’rs v. City of Capitola, 583 F.3d 674, 683 (9th Cir. 2009) (quoting Pioneer, 

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507 U.S. at 398). Nonetheless, when the other factors weigh in favor of granting the motion, 

courts generally excuse these kinds of neglectful calendaring errors because they fall 

“somewhere in the middle of the spectrum of least-compelling to most-compelling 

reasons.” Gunderson v. Corizon, No. CV-17-01791-PHX-DWL (ESW), 2019 WL 79008, 

at *3 (D. Ariz. Jan. 2, 2019) (collecting cases). And although a prior issue on timeliness 

caused this Court to hold a show-cause hearing on the subject of sanctions, the Court does 

not find that this previously missed deadline renders the present calendaring issue so

egregious as to preclude granting an extension. See Harvest v. Castro, 531 F.3d 737, 747 

(9th Cir. 2008) (finding it appropriate to decline an extension where the “neglect . . . was 

systemic (as evidenced by the fact that it happened more than once)”). Because the other 

equities favor excusing Plaintiff’s neglect, especially the apparent impossibility of any 

prejudice given the parties’ agreement, the Court will allow the extension.

This analysis applies equally to Defendant, who is in approximately the same 

position as Plaintiff. Again, the parties seek the same relief, Defendant also acted at least 

reasonably quickly after discovering that the deadline had lapsed, and there is likewise no 

evidence that it acted in bad faith. Defendant’s reason for its delay is also a calendaring 

error4 which, while not particularly compelling, is not so egregious as to outweigh the other 

three factors. Thus, the Court will excuse Defendant’s neglectful calendaring error too.

/ / /

/ / /

/ / /

/ / /

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/ / /

/ / /

 

4 The Court notes that Defendant appears to have simply calendared the deadline to appeal 

one month from the Clerk’s entry of judgment, even though the Clerk entered judgment in 

a month with 31 days in it. Barring a situation where the last day of the period falls on a 

weekend or legal holiday, the Court is not aware of any situation where the deadline would

naturally fall in that fashion. 

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Therefore,

IT IS ORDERED that Plaintiff Kasper Smoke Kastle’s Joinder in Defendant’s 

Motion for Extension of Time to File Appeal (Doc. 163) is GRANTED such that the Notice 

of Appeal filed at Doc. 154 is deemed timely.

IT IS FURTHER ORDERED that Defendant’s Motion for Extension of Time to 

File Appeal (Doc. 162) is GRANTED. Defendant shall have 14 days from the date of this 

order in which to file a notice of appeal in accordance with FRAP 4(a)(5)(C).

Dated this 23rd day of April, 2020.

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