MARK HAWKINS v. HOWARD UNIVERSITY HOSPITAL, 151 A.3d 900

Background

Hawkins sued Howard University Hospital for unlawful harassment and discrimination; the trial court granted summary judgment for Howard on September 9, 2013.
Hawkins filed a timely Rule 59(e) motion for relief from judgment and filed a notice of appeal on October 9, 2013, while the Rule 59(e) motion was still pending.
This court issued an order to show cause why the appeal should not be dismissed as premature; a motions division dismissed the appeal in December 2013; Hawkins’s counsel asserts she did not receive notice of those orders.
The trial court denied Hawkins’s Rule 59(e) motion on March 24, 2015; Hawkins’s counsel learned of the December 2013 dismissal on May 19, 2015 and, three days later, Hawkins filed in Superior Court a motion for an extension of time under D.C. App. R. 4(a)(5)(A) attaching a new notice of appeal.
The trial court denied Hawkins’s extension motion; on appeal Hawkins argued (1) his original notice of appeal should have been treated as dormant rather than dismissed as premature under D.C. App. R. 4(a)(4)(B) and (2) that he showed excusable neglect in seeking the extension.

Issues

Issue	Hawkins' Argument	Howard's Argument	Held
Whether a notice of appeal filed after judgment but before disposition of a tolling post-trial motion is premature or dormant	The October 2013 notice became dormant and became effective when the Rule 59(e) motion was decided	The notice was premature and dismissal was proper	Court held such notices are dormant under D.C. App. R. 4(a)(4)(B) and should not be dismissed as premature
Whether Hawkins exercised excusable neglect/diligence in seeking an extension after learning of the dismissal	Counsel did not learn of the dismissal until May 19, 2015 and filed for extension three days later	Hawkins failed to show excusable neglect and should have filed a second notice earlier	Court accepted counsel’s representations and held, as a matter of law, Hawkins showed excusable neglect
Whether Hawkins complied with D.C. App. R. 4(a)(5)(i) by filing a second notice within 60 days of the Rule 59(e) denial	Hawkins attached a second notice to his May 22, 2015 extension motion, within 60 days of March 24 denial	Howard argued Hawkins missed the 60-day window	Court found Hawkins complied with Rule 4(a)(5)(i) because the second notice was attached to the timely extension motion
Scope of appeal (whether Hawkins may separately appeal the Rule 59(e) denial)	Hawkins did not timely file a separate notice challenging the Rule 59(e) denial	Howard emphasized that a separate appeal from the Rule 59(e) denial was required	Court noted Hawkins did not timely appeal the Rule 59(e) denial and did not seek to show excusable neglect for that separate failure; potential limitation remains

Key Cases Cited

Malloy v. WM Specialty Mortg. LLC, 512 F.3d 23 (1st Cir.) (notice filed before disposition of tolling motion becomes effective when motion denied)
Ross v. Marshall, 426 F.3d 745 (5th Cir.) (timely post-trial motion suspends a notice of appeal until disposition)
Hertzner v. Henderson, 292 F.3d 302 (2d Cir.) (notice filed before ruling on tolling motion becomes effective upon denial)
Dyer v. William S. Bergman & Assocs., Inc., 635 A.2d 1285 (D.C.) (prior rule treatment: notices filed before disposition were deemed premature)
Carter v. Cathedral Ave. Coop., Inc., 532 A.3d 681 (D.C.) (court sometimes overlooked prematurity under prior rule in certain circumstances)
TRG Constr., Inc. v. District of Columbia Water & Sewer Auth., 70 A.3d 1164 (D.C.) (federal interpretations of identical rule language are persuasive)
Clark v. Bridges, 75 A.3d 149 (D.C.) (court may treat appeal as though extension had been granted and proceed to merits)
Wynn v. United States, 386 A.2d 695 (D.C.) (declining remand where opposing party did not present evidence at hearing)
Gibbs v. Frisco City, Ala. Police Dep’t, 626 F.2d 1218 (5th Cir.) (reversing on finding of excusable neglect and proceeding to merits)
United States v. Andrews, 790 F.2d 803 (10th Cir.) (concluding excusable neglect as a matter of law and considering merits)