Opinion
SUPREME COURT NO. 2008-SCC-0012-CIV
June 8, 2011, Decided. June 8, 2011, Entered
For Plaintiff-Appellant: David G. Banes, O'Connor Berman Dotts & Banes, Saipan, MP.
For Defendant-Appellee: David Lochabay, Assistant Attorney General, Office of the Attorney General, Saipan, MP.
Per Curiam:
The Commonwealth Health Center ("CHC") filed a motion to reconsider an order entered by a single justice denying CHC's request for leave to file an out-of-time-brief. As this matter is now before the full panel, and because we find that CHC has not offered sufficient reasons for its failure to file a timely brief, we conclude CHC should not be allowed to file its brief. Accordingly, CHC's petition to file its cross-appeal and reply brief is hereby DENIED.
I
Plaintiff Alvin Owens ("Owens") filed his appeal in this medical malpractice case on March 12, 2008. CHC followed with a cross-appeal on April 16, 2008. Thereafter, no party made further filings with the Court until CHC filed a Motion to Dismiss on August 21, 2008 based on Owens' failure to designate transcripts as required by former Commonwealth Rule of Appellate Procedure 10(b)(1) or file a statement of issues as required by former Rule 10(b)(3). The Court denied CHC's Motion to Dismiss holding that the delay was not so severe that the interests of justice warranted dismissal. The Court later issued a briefing schedule requiring Owens to file his principal brief on or before June 9, 2010, and CHC was ordered to file its brief 30 days thereafter.
The relevant portion of this rule reads "[w]ithin 10 days after filing the notice of appeal the appellant shall . . . order from the Clerk of the Superior Court a transcript of such parts of the proceedings . . . as the appellant deems necessary . . . ." NMI R. App. P. 10(b)(1). The new Supreme Court Rules went into effect on January 13, 2010. CHC's motion, filed in 2008 is based on the former Commonwealth Rules of Appellate Procedure. Throughout this opinion, the word "former" before a Rule designation refers to the appellate rules in effect at the time CHC filed its motion to dismiss in 2008.
The relevant portion of this rule reads "[t]he appellant shall, within the 10 days as provided in Rule 10(b)(1) above, file a statement of the issues the appellant intends to present on the appeal . . . ." NMI R. App. P. 10(b)(3).
On July 8, 2010, CHC motioned the Court for a thirty-day extension to file its cross-appeal and reply brief. The motion was unopposed. The Clerk of Court ("Clerk") granted the extension, and CHC's new filing deadline for its principal brief was reset to August 9, 2010. CHC did not file its brief by this date, nor did it petition the Court for an extension of time. On August 30, twenty-one days after the filing deadline expired, CHC filed its principal brief along with a separate Motion for Leave to File Out-of-Time Brief ("Motion for Leave"). The Clerk rejected CHC's Motion for Leave, stating that pursuant to Northern Mariana Islands Supreme Court Rule 31-1(b), motions to file an out-of-time brief were "highly disfavored" and that CHC had not justified its failure to file a timely brief in a manner sufficient to overcome the "highly disfavored" standard.
CHC subsequently filed a motion to reconsider the Clerk's denial, arguing that the Clerk did not have the authority to rule on the Motion for Leave, citing Rule 27-4 which reads in relevant part: "The Clerk may not rule upon motions to . . . file a document if the time period specified in these rules for filing the document, including any previous extensions, has already expired when the motion is filed." NMI Sup. Ct. R. 27-4(a)(2). A single justice reviewed CHC's motion for reconsideration and issued an Order Denying Defendant-Appellee's Motion to Reconsider Denial of Motion for Leave to File Out-of-time Brief on November 1, 2010, concurring with the Clerk's determination that CHC did not overcome the "highly disfavored" standard in Rule 31-1(b). CHC now petitions the Court to reconsider this order.
II
We review the November 1 Order pursuant to Rule 27-4(d), which provides that "[a] motion to reconsider an order entered by a single justice shall be decided by the full court." NMI Sup. Ct. R. 27-4(d)(2)(B).
III
We state plainly that one of the purposes of the revised Northern Marianas Island Supreme Court Rules is to curb procedural delay. We recognize that, in the past, parties and their counsel have often and unnecessarily added months or years to pending appeals. See, e.g., Commonwealth Dev. Auth. v. Atalig, 2009 MP 5, 8 N. Mar. I. 207 (denying Appellant's motion to enlarge to time file its brief based on findings of dilatory conduct); In re Estate of Taisacan, 2008 MP 6, 8 N. Mar. I. 49 (finding that counsel's series of motions requesting 120 days' worth of extensions of time were attempts to force the Court to conform to his scheduling preferences); In re Roy, 2007 MP 28, 8 N. Mar. I. 6 (noting that counsel, without excuse, failed to file a brief for four months); Babauta v. Babauta, 2004 MP 2, 7 N. Mar. I. 23 (noting that counsel requested a second extension of time after previously being granted a fifty-two day extension). With our revised rules in hand, we hope to temper this practice. Today, we give effect to the tougher filing requirements set forth in the revised rules.
A. The Clerk's denial of CHC's attempt to file an out-of-time brief
CHC argues that the Clerk's denial of its August 30, 2010 Motion for Leave was improper because the time for filing its brief expired on August 9, 2010. CHC directs the Court to NMI Supreme Court Rule 27-4(a)(2)(B), which states that "[t]he Clerk of Court may not rule upon motions to . . . file a document if the time period specified in these rules for filing the document, including any previous extensions, has already expired when the motion is filed." NMI Sup. Ct. R. 27-4(a). We agree with CHC that Rule 27-4 is unambiguous: the Clerk had no authority to deny CHC's Motion for Leave once the August 9 deadline had passed.
In contrast, the clerk may hear "routine, unopposed motions" and "motions to extend time for filing briefs" pursuant to Rule 31-1. NMI Sup. Ct. R. 27-4(a)(1)(A)-(B).
When a party moves to file an out-of-time document, Rule 27-4 provides two alternatives to the Clerk's action: a single justice may entertain the motion pursuant to Rule 27-4(b), or the full Court may hear the motion pursuant to Rule 27-4(c). Our choice between application of 27-4(b) and 27-4(c) is determined by the procedural effect of deciding the motion. When a motion "would have the effect of determining the merits of a proceedings [sic]," NMI Sup. Ct. R. 27-4(c)(1)(A), such motion must be heard by the "full Court." NMI Sup. Ct. R. 27-4(c). In contrast, nondispositive motions may be granted or denied by a single justice. NMI Sup. Ct. R. 27-4(b) ("Any motion other than those described at [27-4(c)] may be decided by a single justice.").
Rule 31(c) provides that "[i]f an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal." NMI Sup. Ct. R. 31(c). It follows that an order denying a party leave to file a principal or cross-appeal brief would vest the opposing party with the power to have the appeal or cross-appeal dismissed. Moreover, the Court will be unable to adjudicate the merits of an appeal without a brief setting forth argument and authority. Thus, motions to file an out-of-time principal brief are tantamount to a dismissal. Such motions must be heard by the full court according to Rule 27-4(c). Based on the foregoing rules, CHC was entitled to have the full court review its Motion for Leave. Despite the impropriety of the Clerk's denial, we will nevertheless address the merits of CHC's Motion for Leave because the motion is now before the full court as required by Rule 27-4(c).
We reject the notion that oral argument is generally sufficient for the Court to assess the merits of an appeal. We routinely decline to reach arguments that the parties inadequately brief. See, e.g., Guerrero v. Dep't of Pub. Lands, 2011 MP 3 ¶ 24 (Slip Opinion, Mar. 31, 2011); Commonwealth v. Hossain, 2010 MP 21 ¶ 34 (Slip Opinion, Dec. 31, 2010); In re Estate of Malite, 2010 MP 20 ¶ 37 n.27 (Slip Opinion, Dec. 29, 2010).
B. Rule 31-1(b) and the "highly disfavored" standard
The only procedural issue before us is whether CHC should be allowed to file its principal brief in support of its cross-appeal. Filing of late briefs is governed by NMI Supreme Court Rule 31-1(b). Rule 31-1(b) states that when a party could have filed a motion seeking a discretionary extension enlarging time to file a document, but failed to do so, a subsequent motion to file an out-of-time document is "highly disfavored." NMI Sup. Ct. R. 31-1(b). The "highly disfavored" language leaves little room for interpretation; it is a strong indicator that the Court is unwilling to allow out-of-time documents without a strong contrary showing. Although Rule 31-1(b) is based in part on the U.S. Federal Rules of Appellate Procedure, it is tailored to specific problems faced by the CNMI Supreme Court. The "highly disfavored" language in Rule 31-1(b) is unique to the CNMI.
We also provide guidance with respect to the procedural mechanism in Rule 31-1(b). Rule 31-1(b) requires that a party seeking to file an out-of-time document must ask for permission from the Court before filing the document. This requirement arises from administrative necessity: the Court may issue a new briefing schedule, issue an order to show cause, or take other action prior to allowing the moving party to file an out-of-time brief.
CHC argues that the Court should allow parties to file the out-of-time document as an exhibit to a motion to file an out-of-time brief. This point is well-taken. Filing a complete or partially completed brief will certainly aid in overcoming the "highly disfavored" standard in Rule 31-1(b). In such circumstances, the brief should be filed at the same time as the motion to file an out-of-time brief, and should clearly be marked as an exhibit. If the motion to file an out-of-time brief is granted, the moving party must still file the completed brief with the Court, and that party is not entitled to rely on the copy attached as an exhibit.
There is some discrepancy as to whether the extension granted to CHC was a discretionary extension or an automatic extension. CHC's counsel submitted declarations from two attorneys in support of CHC's Motion for Leave. One declaration states that CHC was granted a "discretionary extension;" the other states that CHC was granted an "automatic extension." The Motion for Leave does not specify which type of extension was granted. Moreover, the original motion for extension of time does not otherwise clarify the nature of the extension sought, nor does our order granting CHC's requested extension.
Declaration in Support of Motion to File a Late Brief at ¶ 3, Owens v. CHC, No. 2008-SCC-0012-CIV (NMI Sup Ct. Aug. 30, 2010).
Declaration of David Lochabay at 2, Owens v. CHC, No. 2008-SCC-0012-CIV (NMI Sup Ct. Aug. 30, 2010).
Motion for Extension of Time to File Appellee/Cross-Appellant's Brief, Owens v. CHC, No. 2008-SCC-0012-CIV (NMI Sup. Ct. July 8, 2010).
Owens v. CHC, No. 2008-SCC-0012-CIV (NMI Sup. Ct. July 20, 2010) (unpublished) (Order Granting Extension of Time).
We resolve this difficulty by examining Rule 31-1, which governs extensions. Rule 31-1(a)(1)(A)(i) provides that "[a] party must request an automatic extension of time by filing a motion specifically citing Rule 31-1(a)(1)." The clerk "shall" grant automatic extensions of time when no other extension has been granted. NMI Sup. Ct. R. 31-1(a)(1)(A)(ii). If a party obtains an automatic extension of time under Rule 31-1(a)(1), that party may not request any additional extensions, including automatic or discretionary extensions. NMI Sup. Ct. R. 31-1(a)(1)(B)-(C). To file a discretionary extension, "[a] party must . . . fil[e] a motion specifically citing Rule 31-1(a)(2) and conforming to the requirements of Rule 31-1(a)(2)(B)." NMI Sup. Ct. R. 31-1(a)(2)(A)(i). The rules governing discretionary extensions set forth a list of facts which must be included in an affidavit accompanying the motion. NMI Sup. Ct. R. 31-1(a)(2)(B)(i)-(vii).
Two facts aid our determination as to the nature of CHC's extension: 1) the assistant attorney general ("AAG") who filed the motion for extension of time referred to the extension as a "discretionary extension" in his declaration in support of the Motion for Leave; and 2) the AAG's affidavit filed in support of the original extension of time substantially complied with the rules governing discretionary extensions. See NMI Sup. Ct. R. 31-1(a)(2)(B). From these facts, we conclude that CHC sought and was granted a single discretionary extension. CHC was not barred from seeking an additional, albeit disfavored, extension at the time the August filing deadline lapsed. See NMI Sup. Ct. R. 31-1(a)(2) ("Discretionary extensions of time are disfavored and will only be granted in cases of extreme need.").
Declaration in Support of Motion to File a Late Brief, supra note 6.
Declaration in Support of Motion for Extension of Time, Owens v. CHC, No 2008-SCC-0012-CIV (NMI Sup. Ct. Jul 8, 2010).
We now turn to the merits of the Clerk's denial of CHC's Motion for Leave. Rule 31-1(b) states that when a party could have filed a motion seeking a discretionary extension to file a brief, but failed to do so, a subsequent motion to file an out-of-time brief is "highly disfavored." NMI Sup. Ct. R. 31-1(b). In this case, CHC motioned for a single discretionary extension on July 8, 2010, which was granted. CHC's principal cross-appeal brief was due on or before August 9, 2010. CHC allowed this deadline to expire without taking any action. Twenty-one days later, CHC filed a motion for leave to file an out-of-time brief. CHC's counsel could have filed for a second discretionary extension of time to file its brief prior to the August deadline, but failed to do so. In other words, CHC engaged in exactly the conduct that Rule 31-1(b) was designed to prevent. Thus, we must deny CHC's Motion for Leave unless it can surmount the "highly disfavored" standard.
CHC premised its motion to file an out-of-time brief on Rule 26(b), which states that "[f]or good cause, the Court. . . may permit an act to be done after that time expires." NMI Sup. Ct. R. 26(b). A well-known maxim of statutory construction provides that specific language controls over more general language. Taisacan, 2008 MP 6 ¶ 13 (citing Limon v. Camacho, 1999 MP 18 ¶ 30, 5 N. Mar. I. 21). Rule 31-1(b) specifically addresses motions to file out-of-time briefs, and thus, Rule 31-1(b) controls. Rule 31-1(b) is the only avenue of relief available to parties seeking leave from the Court to file an out-of-time brief. See, e.g., Atalig, 2009 MP 5 ¶ 4; Taisacan, 2008 MP 6 ¶ 13.
We compare Rule 31-1(b) to former Rule 31, which states that a late brief "may be filed only with the permission of the Court, on such conditions as the Court may order." NMI R. App. P. 31(e). The old Rule does not contain the "highly disfavored" language present in Rule 31-1(b), nor does it contain other limiting language.
C. CHC fails to overcome the "highly disfavored" standard
In determining whether CHC can overcome the "highly disfavored" standard in Rule 31-1(b), we note that the NMI Supreme Court Rules do not define this standard, nor does it appear in the Federal Rules of Appellate Procedure. Thus, the Court is tasked with either articulating a new standard or choosing a similar preexisting standard. In this case, we will turn to NMI Supreme Court Rule 4(a) and its substantially similar Federal Court of Appeals counterpart, Federal Rule of Appellate Procedure 4(a) ("Federal Rule 4(a)"). Both Rules provide that "the [lower court] may extend the time to file a notice of appeal if . . . regardless of whether the motion [to extend time] 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." (Emphasis added).
We choose to adopt the "excusable neglect" standard in NMI Supreme Court Rule 4(a) and Federal Rule 4(a) as our Rule 31-1(b) baseline. First, litigants who fail to file a timely notice of appeal pursuant to Rule 4(a) lose their ability to pursue an appeal just as litigants who run afoul of Rule 31-1(b) effectively lose their opportunity to have their appeal heard if the out-of-time brief is a principal or cross-appeal brief. Second, federal appellate courts stringently interpret the "excusable neglect" standard in Federal Rule 4(a), holding that relief will not be granted unless the party can show "unique" or "extraordinary" circumstances. In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir. 1985); Spound v. Mohasco Indus., Inc., 534 F.2d 404, 411 (1st Cir. 1976); Gooch v. Skelly Oil Co., 493 F.2d 366, 370 (10th Cir. 1974); Dugan v. Missouri Neon & Plastic Adver. Co., 472 F.2d 944, 948 (8th Cir. 1973). Although the "excusable neglect" and "highly disfavored" standards are not identical, the strict interpretation of "excusable neglect" in Federal Rule 4(a) comports with the nature and intent of Rule 31-1(b).
For guidance on the interpretation of excusable neglect, we turn to Pincay v. Andrews, 351 F.3d 947, 949-50 (9th Cir. 2003), which construes "excusable neglect" as it applies to Federal Rule 4(a)(5). In Pincay, a lawyer relied on the calendaring clerk at his law firm to calculate the deadline for filing the notice of appeal. Id. at 949. The filing clerk misunderstood the filing deadline provided in Federal Rule 4(a). Id. The attorney relied on the clerk's statements and failed to file a notice of appeal until after the filing deadline passed. Id. Upon learning of the mistake, the attorney immediately filed a notice of appeal along with a motion to extend the time for filing, which the district court granted. Id. The adverse party appealed the district court's decision to extend the time for filing the notice of appeal. Id.
In overturning the district court, the Ninth Circuit Court of Appeals stated that, "[t]he ordinary meaning of 'neglect' is 'to give little attention or respect' to a matter, or, closer to the point for our purposes, 'to leave undone or unattended to especially through carelessness.' Webster's Ninth New Collegiate Dictionary 791 (1983) (emphasis added)." Id. at 950 (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993)). While "excusable neglect" is a somewhat flexible concept, "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect." Id. (quoting Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir. 1994)). The Pincay court concluded that the attorney's reliance on the calendaring clerk constituted inexcusable neglect and that the attorney could not delegate responsibility for knowledge of the applicable federal rules to a filing clerk.
In comparing the instant case to Pincay, the following facts are relevant: the AAG responsible for filing CHC's brief: 1) went off island for two of the eight weeks allocated to write the brief; 2) underestimated the time required to write the brief; 3) worked on other "more-pressing" matters instead of the brief; and 4) was aware of the impending deadline to file the brief but failed to ask for a second extension. We further note that the AAG's supervisor learned of the problem as early as August 18, 2010, but did not file a motion to file an out-of-time brief until after the brief was completed on August 30, 2010. In comparison to the Pincay attorney who did not have direct knowledge of the filing deadline, the AAG's conduct indicates that the AAG knew of the relevant deadline, and further, that the AAG mismanaged his workload and ignored the impending deadline. Failure to manage one's workload is not adequate justification for missing a filing deadline. See Taisacan, 2008 MP 6 ¶ 11 (rejecting counsel's assertions that a large workload, a voluminous appellate record, and other technical difficulties were adequate justification for filing a late brief); Roy, 2007 MP 28 ¶ 11 (holding that "[t]he prosecutor's argument that she is overworked in an office with insufficient resources is not an excuse for noncompliance with the Court's rules"); Babauta, 2004 MP 2 ¶ 6 (rejecting counsel's argument that a full trial docket was adequate justification for an extension of time to file a principal brief). We contrast the attorney's reliance on the mistaken filing clerk in Pincay to the circumstances of this case. Here, the AAG engaged in a course of conduct far more culpable than reliance on a filing clerk, conduct which includes knowing disregard for CHC's filing deadline. For this reason, CHC cannot overcome the "highly disfavored" standard set forth in Rule 31-1(b).
Declaration in Support of Motion to File a Late Brief, supra note 6, ¶¶ 3-6; Declaration of David Lochabay, supra note 7.
In determining what constitutes inexcusable neglect, we also consider that there are circumstances under which counsel might be able to overcome the "highly disfavored" standard. Such instances include i) erroneous action taken by this court, on which counsel relied in good faith and subsequently failed to meet the filing deadline; ii) illness of the attorney responsible for the filing or an severe illness or death in that attorney's immediate family; iii) a problem caused by the Court's electronic filing system. While this list is not exhaustive, these categories share a common feature: they represent events beyond the control of the attorney responsible for the filing. It is possible that attorney mistake or inadvertence might overcome the "highly disfavored" standard, but we are generally disinclined to allow filing of late briefs when an attorney fails to exercise ordinary care.
See, e.g., Bennett v. City of Holyoke, 362 F.3d 1, 5 (1st Cir. 2004) (noting that the federal district court admitted that its actions caused confusion over the timing of the notice of appeal); Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979) (finding that counsel, in good faith, relied on statements made by the district court).
See, e.g., Local Union No. 12004, USW v. Massachusetts, 377 F.3d 64, 72 (1st Cir. 2004) (allowing late filing of the notice of appeal when the attorney, who was caring for his sick infant daughter, drafted the notice of appeal, but mistakenly forgot to file before the deadline and immediately corrected his mistake).
See, e.g., Brotherhood of Ry. Carmen Div. of Transp. Commc'ns Int'l Union v. Chicago & North Western Transp. Co., 964 F.2d 684, 686 (7th Cir. 1992) (finding excusable neglect found where party was relying on electronic filing system and the system failed to send the attorney notice of entry of an order); Shah v. Hutto, 704 F.2d 717, 721 (4th Cir. 1983) (holding that late filing caused by delays in the postal system constituted excusable neglect).
CHC asks the Court for lenience because it was wholly CHC's counsel's fault that CHC's principal cross-appeal brief was not filed by August 9, 2010, yet it is CHC who will suffer the consequences. CHC directs the Court to NMI Sup. Ct. R. 45-1(c)(2) for the general principal that "dismissal is disfavored unless the party, rather than counsel, is responsible for the noncompliance." NMI Sup. Ct. R 45-1(c)(2). In further support, CHC cites to Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir. 1986), suggesting that if the result of the Court's ruling is that a party will lose its day in court, the Court "must consider more than whether or not a party's counsel is at fault for failing to timely file its brief and the fact that relief is discretionary." See also In re Hill, 775 F.2d 1385, 1386-87 (9th Cir. 1985).
Motion to Reconsider Decision of a Single Justice Denying Reconsideration of Denial of Motion for Leave to File Out-of-time Brief at 4, Owens v. CHC, No. 2008-SCC-0012-CIV (NMI Sup. Ct. Nov. 17, 2010).
CHC's citation to Rule 45-1(c)(2) is unavailing. The plain language of Rule 31-1(b) makes filing an out-of-time document "highly disfavored." Were we to accept CHC's attempt to superimpose Rule 45-1(c)(2) onto Rule 31-1(b), we would be obligated to read an exception into Rule 31-1(b) where none exists. In essence, filing of an out-of-time brief would be "highly disfavored" unless the party's counsel was responsible for the delay, in which case any decision to deny an out-of-time brief would become "disfavored" pursuant to the language of Rule 45-1(c)(2). This is contrary to the plain language of Rule 31-1(b), which makes motions to file an out-of-time brief "highly disfavored."
CHC's reliance on Westinghouse is likewise unpersuasive. The main difference between CHC and the Westinghouse appellant is that if the Ninth Circuit Court of Appeals had upheld dismissal of the Westinghouse appellant's bankruptcy brief, she would have been denied access to bankruptcy proceedings. In this case, both Owens and CHC have already had a trial on the merits. Effectively denying an appeal, while painful, is not equivalent to complete denial of any opportunity to be heard. In situations where denial of an appeal on procedural grounds would constitute a denial of an opportunity to be heard by any court, it may be more appropriate to consider the fault of the party. We say this, mindful that Rule 31-1(b) was designed specifically to combat attorney misconduct. The policy behind this harsh result is to compel attorneys to pay attention to their ongoing cases, to temper needless delay in appellate cases, and to give appropriate deference to the Court's procedural rules and the ordered administration of justice.
IV
For the foregoing reasons, we hold that CHC inadequately justified its failure to file a timely cross-appeal brief. Accordingly, CHC's motion to file its cross-appeal brief is hereby DENIED.
SO ORDERED this 8th day of June, 2011.
/s/
Miguel S. Demapan
Chief Justice
/s/
John A. Manglona
Associate Justice
/s/
Edward Manibusan
Justice Pro Tem
JUDGMENT
The Commonwealth Health Center ("CHC") filed a motion to reconsider an order entered by a single justice denying CHC's request for leave to file an out-of-time-brief. For the reasons cited in the opinion accompanying this order, CHC's petition to file its cross-appeal and reply brief is DENIED.
ENTERED this 8th day of June, 2011.