United States v. Marcus Hooper, 43 F.3d 26 (2d Cir. 1994). · Go Syfert
United States v. Marcus Hooper, 43 F.3d 26 (2d Cir. 1994). Cases Citing This Book View Copy Cite
45 citation events (28 in the last 25 years) across 10 distinct courts.
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
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At page 28 holding that a legal assistant’s ignorance of the rule establishing a deadline for filing criminal appeals did not constitute “excusable neglect” justifying the late filing of an appeal15 citing cases3 citing courts put it this way
  • Griffin v. LaManna, No. 24-3009-pr (2d Cir. Apr. 29, 2026).published
    (a legal assistant’s failure to meet a filing deadline because she misunderstood a clear rule establishing the deadline did not constitute excusable neglect)
  • Doe v. Bd. of Educ. of North Colonie Cent. Sch. Dist., No. 1:22-cv-00700 (N.D.N.Y. June 27, 2023).
    (affirming denial of extension where delay resulted from legal assistant’s ignorance of the rules)
  • In re Town of Killington, 838 A.2d 98 (Vt. 2003).published
    Many federal courts have taken what we think is an appropriately hard line when it comes to determining when neglect that stems from factors totally within the control of a party or its attorney is “excusable.” United States v. Hooper, 43…
  • Hartford Steam Boiler Inspection & Ins. v. Se. Refractories, Inc., 212 F.R.D. 62 (D. Conn. 2003).published
    (holding that a legal assistant’s ignorance of the rule establishing a deadline for filing criminal appeals did not constitute “excusable neglect” justifying the late filing of an appeal)
  • Blandford v. Broome Cnty. Gov't, 193 F.R.D. 65 (N.D.N.Y. 2000).published
    Thus, the import of these cases indicates that the Pioneer Court “established a more liberal standard for determining whether there had been ‘excusable neglect.’ ” United States v. Hooper, 43 F.3d 26, 28 (2d Cir.1994).
  • Carcello v. TJX Companies, 192 F.R.D. 61 (D. Conn. 2000).published
    “Those circumstances include prejudice to the adversary, the length of the delay, the reason for the error, the potential impact on the judicial proceedings, whether it was within the ‘reasonable control of the movant,’ and whether the mov…
  • Cobos v. Adelphi Univ., 179 F.R.D. 381 (E.D.N.Y 1998).published
    For this reason, the court independently analyzes whether Tate’s omissions might fairly be labeled “excusable neglect.” In Pioneer , the Supreme Court explained that the finding of “excusable neglect” was an equitable determination which c…
  • Joan M. Canfield v. Van Atta Buick/gmc Truck, Inc., 127 F.3d 248 (2d Cir. 1997).published 2 cites
    In Pioneer, however, the Supreme Court “established a more liberal standard for determining whether there had been ‘excusable neglect.’ ” United States v. Hooper, 43 F.3d 26, 28 (2d Cir.1994).
  • Bart v. Golub Corp, No. 3:20-cv-00404 (D. Conn. June 28, 2022).
    (finding that a legal assistant’s ignorance of a deadline for filing a criminal appeal did not constitute excusable neglect)
  • In Re Lund, 2004 VT 55, 857 A.2d 279.published 2 cites
    See id. (citing United States v. Hooper, 43 F.3d 26, 28-29 (2d Cir. 1994)).
Show 5 more citing cases
At page 29 rejecting claim of excusable delay based on “poorly supervised assistant’s ignorance of the deadline15 citing cases1 citing court put it this way
  • In Re: Deva Concepts Prods. Liab. Litig., No. 1:20-cv-01234 (S.D.N.Y. Apr. 25, 2022).
    Markets Inc., 569 F. App’x 16, 19 (2d Cir. 2014) (affirming lower court’s determination that a movant had failed to show excusable neglect where she and her counsel “genuinely believed the other was responsible for sending the opt-out noti…
  • Joseph v. Korn, No. 1:19-cv-07147, 2021 WL 912163 (E.D.N.Y Mar. 9, 2021).
    (rejecting claim of excusable delay based on “poorly supervised assistant’s ignorance of the deadline)
  • William v. City of New York, No. 17-3125-cv (2d Cir. June 19, 2018).unpublished
    Likewise, we have stated that “[i]n determining whether or not there was ‘excusable neglect’” for purposes of Rule 60(b)(1), “the district court is to consider the Pioneer factors.” United States v. Hooper, 43 F.3d 26, 29 (2d Cir. 1994) (p…
  • Wilma Williams v. Kfc Nat'l Mgmt. Co., 391 F.3d 411 (2d Cir. 2004).published 2 cites
    We expressed concern that “the legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced” and, in that case, where vigorous opposition to the explanations for the neglect w…
  • United States v. George D. Walls, 163 F.3d 146 (2d Cir. 1998).published
    See United States v. Carson, 52 F.3d 1173, 1180 (2d Cir.1995); United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994).
  • Rittmaster v. PaineWebber Grp., Inc., 147 F.3d 132 (2d Cir. 1998).published
    We review that decision for an abuse of discretion; See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.1995); United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994) (per curiam).
  • In Re: Painewebber Ltd. Partnerships Litig., 147 F.3d 132 (2d Cir. 1998).published
    See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.1995); United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994) (per curiam). 16 Plaintiff avers that the district court abused its discretion when it found his neglect inexcusable bec…
  • United States v. Odell Marbley, 81 F.3d 51 (7th Cir. 1996).published
    Prizevoits v. Indiana Bell Tel Co., 76 F.3d 132 (7th Cir.1996); United States v. Clark, 51 F.3d 42, 44 (5th Cir.1995); United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994).
  • In Re Crazy Eddie Sec. Litig., 906 F. Supp. 840 (E.D.N.Y 1995).published
    (attorney ignorance of rule not excusable where attorney represented client before the court in all prior proceedings)
  • U.S. Bank Nat'l Ass'n v. Nanan, No. 1:20-cv-00849 (E.D.N.Y Jan. 24, 2022).
    See Joseph, 2021 WL 912163 , at *2 (citing United States v. Hooper, 43 F.3d 26, 29 (2d Cir. 1994)).
Show 5 more citing cases
  • In Re: Soundview Elite Ltd. (Fletcher v. Harrington), 597 F. App'x 663 (2d Cir. 2015).unpublished
    See United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994).
  • In Re Keene Corp., 188 B.R. 903 (Bankr. S.D.N.Y. 1995).published
    The Court distinguished between inadvertence, mistakes and ignorance in construing rules, which do not usually constitute "excusable" neglect, 507 U.S. at —, 113 S.Ct. at 1496 ; accord United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994);…
  • United States v. Peter Brett Clark, 51 F.3d 42 (5th Cir. 1995).published
    See United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994); Kyle, 28 F.3d at 930-32 ; Weinstock, 16 F.3d at 503 .
  • United States v. Carson, 52 F.3d 1173 (2d Cir. 1995).published
    See United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994) (“Hooper II”).
  • United States Court of Appeals, Second Circuit, 52 F.3d 1173 (2d Cir. 1995).unpublished
    See United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994) ("Hooper II ").
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Marcus HOOPER, Defendant-Appellant
18-2987.
Court of Appeals for the Second Circuit.
Dec 19, 1994.
Published opinion
43 F.3d 26
1994 U.S. App. LEXIS 36133
Patrick H. NeMoyer, U.S. Atty. for the W.D. of N.Y., Buffalo, NY (Thomas S. Dusz-kiewicz, Asst. U.S. Atty., of counsel), for appellee., Patrick J. Brown, Buffalo, NY, for defendant-appellant.
Kearse, Winter, Conner.
Cited by 37 opinions  |  Published
PER CURIAM:

Defendant Marcus Hooper appeals from an April 11, 1994 order of the United States •District Court for the Western District of New York, Richard J. Arcara, Judge, denying his motion pursuant to Fed.R.App.P. 4(b) for permission to file a late notice of appeal. The district court, on remand from this Court in United States v. Hooper, 9 F.3d 257, 259 (2d Cir.1993) (“Hooper I ”), for consideration of the motion in light of the then-recent Supreme Court decision in Pioneer Investment Services Co. v. Brunswick Associates Ltd., — U.S. -, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (“Pioneer”), found that the failure to file the notice of appeal within the time allowed was not the result of “excusable neglect,” within the meaning of Rule 4(b). We conclude that the court’s decision was not an abuse of discretion, and we therefore affirm.

The background of this motion is set forth in Hooper I, familiarity with which is assumed, and is briefly summarized here. Hooper, represented by attorney Mark Ma-honey, was convicted in the district court of narcotics and firearms offenses; Hooper was sentenced on August 21, 1992, and the judgment of conviction was entered on August 27. Rule 4(b) of the Federal Rules of Appellate Procedure states that “[i]n a criminal case, a defendant shall file the notice of appeal in the district court within 10 days after the entry ... of the judgment or order appealed from.... ” Fed.R.App.P. 4(b). Allowing for Saturdays, Sundays, and holidays, see Fed. R.App.P. 26(a), the deadline for Hooper’s notice of appeal was Tuesday, September 8.

According to affidavits submitted in the district court, on the day of sentencing Maho-ney instructed his legal assistant, Margaret Braymiller, to prepare a notice of appeal for[*28] Hooper and file it immediately. Mahoney also instructed Braymiller to file an application for appointment of counsel on appeal. Braymiller prepared the notice of appeal, which was reviewed by Mahoney, but she did not immediately file it because she thought it would be more efficient to file it at the same time as the application for appellate counsel. Braymiller had been a legal assistant in Ma-honey’s office for five years, concentrating on criminal matters, and had routinely been responsible for preparing and fifing notices of appeal for clients following their convictions. However, she believed that the time within which a notice of appeal must be filed from a judgment of conviction was 30 days, rather than 10. Due to delays in the execution of the application for appellate counsel, Bray-miller made her first attempt to file the notice of appeal on September 10, two days late. When the notice was rejected by the district court clerk on a different and erroneous ground, see Hooper I, 9 F.3d at 258, Braymiller consulted Mahoney, who then learned for the first time that the notice of appeal had not yet been filed. Mahoney filed the notice of appeal, together with a motion to permit its late fifing, on September 16. The motion urged that such permission be granted under Rule 4(b), which permits the court to extend the time for fifing a notice of appeal in a criminal case “[u]pon a showing of excusable neglect.”

The district court initially denied Hooper’s motion in November 1992, assessing it under the strict standard for “excusable neglect” used by this Court in 650 Park Avenue Corp. v. McRae, 836 F.2d 764, 767 (2d Cir.1988) (“McRae ”). In Hooper I, however, we observed that in Pioneer, which was decided after the district court’s November 1992 denial of Hooper’s motion, the Supreme Court had established a more liberal standard for determining whether there had been “excusable neglect” and had thereby overruled McRae. We noted that the Pioneer Court “stated that the word ‘neglect’ encompassed ‘both simple, faultless omissions to act and, more commonly, omissions caused by carelessness,’” and that “‘the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control’ ” Hooper I, 9 F.3d at 259 (quoting Pioneer, — U.S. at -, 113 S.Ct. at 1495). Concluding that the Pioneer standard is applicable in criminal eases, Hooper I remanded the matter to the district court for reconsideration of Hooper’s motion under the standard set by Pioneer.

On remand, in a Decision and Order dated April 11, 1994 (“1994 Decision”), the district court again denied the motion. Recognizing that under Pioneer, “the determination of whether the late notice of appeal resulted from excusable neglect is an equitable one,” 1994 Decision at 9, and “considering] the factors set forth by the Supreme Court in Pioneerid., the .district court found that though “several of the factors enunciated in Pioneer clearly favor[ed]” Hooper, and though there was nothing in the record to indicate that Hooper, the attorney, or the assistant had acted in bad faith, “the most prominent factor in this case is ‘the reason for the delay,’ ” 1994 Decision at 6. The court found that the reason was the assistant’s ignorance of the Rule establishing the deadline for criminal appeals, an ignorance that could not have resulted from any plausible misconstruction of the law, and that the attorney had control over the timing of filing and could have prevented the failure to meet the deadline.

The district court also looked to this Court’s post-Hooper I decision in Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir.1994) (“Weinstock”), affirming a refusal to find “excusable neglect” where the appellant had failed to examine the applicable Rule. The district court noted the recognition in Weinstock and Pioneer that “‘ignorance of the rules, or mistakes construing the rules do not usually constitute “excusable” neglect,’ ” Weinstock, 16 F.3d at 503 (quoting Pioneer, — U.S. at -, 113 S.Ct. at 1496).

Applying these standards to the facts found in the present case, the district court

f[ound] that while some factors clearly weigh in defendant’s favor, the most prominent factor in this case is the reason for the delay — namely the ignorance of the[*29] law or rules by the legal assistant. This factor strongly favors the government. Ignorance of the law or rules does not, in general, constitute “excusable neglect.”

1994 Decision at 9. The court concluded that Hooper’s failure to timely file due to the poorly supervised assistant’s ignorance of the deadline set by Rule 4(b) was not “excusable neglect.”

Hooper has appealed. We see no basis for reversal. In determining whether or not there was “excusable neglect,” the district court is to consider the Pioneer factors, see Hooper I, 9 F.3d at 259; a determination made after those factors have been weighed will be disturbed only if it constitutes an abuse of discretion, see Weinstock, 16 F.3d at 503; see also United States v. Koziel, 954 F.2d 831, 834 (2d Cir.1992) (“The denial of a motion for an extension of the time to appeal is not reviewable except for abuse of discretion.”).

In Weinstock. we found no abuse of discretion in the district court’s refusal to find “excusable neglect” under Fed.R.Ann.P. 4(a), the civil-case analog to Rule 4(b), in circumstances where the appellants’ mistake was not a “ ‘plausible misconstruction’ ” of a then-existing requirement in Rule 4(a)(4) but rather was “a failure to follow the plain terms of the Rule.” 16 F.3d at 503. We stated:

As this Court has explained numerous times: The excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules_ Counsel’s lack of familiarity with federal procedure is not an acceptable excuse.

Id. (internal quotes omitted). Proceeding to discuss the Pioneer criteria for determining whether or not there was “excusable neglect,” we stated that

[t]hough some of these factors favor Wein-stock, most prominent in this ease is “the reason for the delay,” namely Weinstock’s failure to examine Rule 4(a)(4), a factor that strongly favors Cleary. Furthermore, Pioneer Investment states that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect.”

Weinstock, 16 F.3d at 503 (quoting Pioneer, — U.S. at -, 113 S.Ct. at 1496).

In the present case, the district court on remand expressly considered all of the Pioneer factors, applied the Weinstock-Pioneer standard, and weighed all of the facts. We cannot conclude that its finding that the neglect was not “excusable” was an abuse of discretion.

CONCLUSION

We have considered all of Hooper’s arguments on this appeal and have found in them no basis for reversal. The order of the district. court is affirmed.