Here are a couple recent rulings from the First Circuit that piqued our interest.


 You can’t be compelled to arbitrate a claim if you never signed an agreement to arbitrate, or even knew it existed.  That’s the bottom line of a November 21 decision, Ouadani v. TF Final Mile LLC, No. 17-1583.

Seem fairly logical to you?  Me too.  And to the Court (Judges Lynch and Selya, with our own Maine District Court Judge Levy sitting by designation).  Judge Lynch, writing for the unanimous panel, dispatched the various estoppel, third party benefit etc. theories proposed by the appellant, represented by Ogletree, Deakins.  Then, at the end of the opinion, Judge Lynch wrote:

“Dynamex [the appellant] is ordered to show cause by written response within fifteen days as to why the court should not assess double costs for “needlessly consuming the time of the court and opposing counsel.”  D’Angelo v. N.H. Supreme Court, 740 F.3d 802, 808 (1st Cir. 2014) (citing In re Simply Media, Inc., 566 F.3d 234, 236 (1st Cir. 2009)); see also Fed. R. App. P. 38; 1st Cir. R. 38.0.”

This spank, unusual in the First Circuit, doesn’t have much financial teeth – costs on appeal are pretty minimal, but is worth noting nonetheless.

A Sad Tune

If your lawyer files a notice of appeal a day too late under Bankruptcy Rule 8002(d) because he was preoccupied with his other job as a church’s music director, that’s not excusable neglect.  In re Sheedy, No. 17-1407.   For some reason, aside from the appellant and trustee, this appeal in a Chapter 13 appeal required five different lawyers from DOJ.

Sheedy filed for relief in bankruptcy court in Massachusetts in 2010.  After five years, the court hadn’t confirmed her plan.  The trustee filed a motion to dismiss, which was granted; the trustee filed a final report and account; and Sheedy filed an objection to the final report, which, after a hearing, the bankruptcy court overruled, entering an order saying so on March 10, 2016.  Under bankruptcy rules, Sheedy had 14 days, or until Friday, March 25, 2016, to file a notice of appeal.  The bankruptcy court can grant an extension if the appellant files a motion to extend within that 14 days, or within 21 days after the 14 day period upon a showing of excusable neglect.  On Monday, March 28, 2016, the bankruptcy court entered an order closing the bankruptcy case, and later the same day Sheedy filed a notice of appeal and motion for extension.

In the motion, Sheedy, through counsel, said her lawyer missed the deadline due to inadvertence and oversight.  Counsel was a music director in a church and the “important religious holidays of the last week occupied his full attention.” The bankruptcy court was unmoved, and the district court affirmed, as did the Court of Appeals (Judge Torruella writing the opinion, joined by Chief Judge Howard and Judge Lynch).

Note that in the opinion, the First Circuit cited a previous decision that noted blowing a deadline because it fell between Christmas and New Year’s was “highly unconvincing.”   Note also that if the ruling of the lower court being appealed wasn’t one on the merits.  If that’s the case, you might have a shot.   See Keane v. HSBC Bank USA, No. 16-1045.

In Keane, Judge Kayatta, writing for a panel with Judges Barron and Lipez, reversed the denial of a motion to vacate an order dismissing a suit against a bank alleging a variey of state law violations in connection with a foreclosure action.  There, after the plaintiff was granted multiple extensions and the trial court noted that no further extensions would be granted, dismissed the suit for failure to prosecute when his lawyer didn’t show up for a motion hearing.  Filing a 60(b) motion the next day, the lawyer said he had failed to calendar the date, was a solo practitioner with a heavy caseload, and his only two office assistants were on maternity leave.  In reversing the denial, the Court of Appeals said that “[w]hile particularly egregious instances of a party neglecting to prosecute” might allow dismissal without a single merits adjudication, the “strong preference for adjudicating disputes on the merits” counseled against sua sponte dismissals when there hasn’t been any consideration of the merits.