Whether federal courts must distinguish between 'excusable neglect' and 'good cause' when evaluating untimely filing of a notice of appeal during extraordinary circumstances like COVID-19 pandemic restrictions

No question identified. : Petitioners' Application To Extend Time To File A Petition For A Writ Of Certiorari To the Honorable Elena Kagan, as Circuit Justice for the United States Court of Appeals for the Ninth Circuit: Petitioners are Indiezone, Ltd a domestic corporation formed under Delaware law, eoBuy Licensing Ltd a company duly formed under the laws of Ireland as the proposed substitute plaintiff for the assignee eoBuy Ltd, the assignor, a defunct Irish company and former plaintiff, their CEO, Conor Fennelly and their Attorney, Douglas R. Dollinger. Each respectfully requests that the time to file their Petition for a Writ of Certiorari in this matter be extended forty-five days to and including January 22, 2024. The Court of Appeals issued its opinion on May 23, 2023, affirming the District Court’s January 28, 2021, -denial for relief to file a late Notice of Appeal. The denial was based on a finding of a lack of jurisdiction to review Petitioners’ claims of error in the district court concerning their Fed R. Civ. P. 144, 455 & Fed R. Civ. P. 60 (b)(6), (d)(1) & (3) Motions. (App. A & B.) No party appeared or opposed the Motions or the Appeal. On June 6, 2023, Petitioners timely sought en banc review. On September 8, 2023, the Court of Appeals issued its order (App. C) in which it denied a petition for en banc review. Absent an extension of time, the Petition would therefore be due on December 7, 2023.Petitioner is timely filing this Application before that date and requests the enlargement for the reasons stated below. See S. Ct. R. 13.5. This Court has jurisdiction over the judgment under 28 U.S.C. § 1254(1). Background Fed. R. App. P. 4 (A) provides that in a civil case the notice of appeal required by Fed. R. App. P. 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from. In matters of late filing Fed. R. App. P. 4(a)(5)(A) provides the district court may extend time for filing a notice of appeal upon a showing of “excusable neglect” or “good cause.” Congress unmistakably intended these two terms to be treated separately. In Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993), this Court had the occasion and previously acknowledged that Congress intended to distinguish the two terms recognizing. the district courts discretion in matters of excusable neglect, citing equitable powers to deny or grant the application. Based on a four-factor analysis provided in Pioneer this Court explained that the factors to be considered include “[1] the danger of prejudice to the [nonmovant], [2] the length of the 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 movant acted in good faith.” Id. at 395. Although Pioneer settled the dispute among the lower courts by guiding the analysis in applying equitable power to forgive late filings under the “excusable neglect” standard, it did not articulate guidance, or provide a standard based on “good cause” for intervening circumstances from which congress intended to excuse a late filing in the absence of a filers fault. The result is that the lower circuit courts have subsumed the good cause term without due consideration of its separate domain simply applying Pioneer’s third equitable factor “the reason for the delay, including whether it was within the reasonable control of the movant”. By doing so the lower courts have ignored congressional intent differing late filings of right for “intervening circumstances” where there is no fault on the part of the filer being late. The uncontested and unopposed record in the proceedings below show that Petitioners’ former counsel was a registered filer with. the district court’s Electronic Court Filing System (“ECF”). On December 23, 2020, within the 30 days provided by Rule 3, counsel as attorney of record made multiple tim