Laltitude LLC v. Dreambuilder Toy LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LALTITUDE, LLC,
Plaintiff,
Case No. 2:22-cv-2911
v. 	Judge Edmund A. Sargus, Jr.
Magistrate Judge Kimberly A. Jolson
DREAMBUILDER TOY, LLC, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff Laltitude, LLC’s Motion for Leave to Appeal.
(ECF No. 53.) Laltitude seeks leave to file a notice of appeal after the deadline to do so has
passed under Federal Rule of Appellate Procedure 4(a)(5). (Id.) Defendant Dreambuilder Toy,
LLC opposes the Motion. (ECF No. 56.) For the reasons stated below, the Motion is DENIED.
BACKGROUND
The Court issued an Opinion and Order on January 8, 2026, awarding Dreambuilder a
portion of its attorneys’ fees in this case. (ECF No. 52.) Federal Rule of Appellate Procedure 4
allows a party to file a notice of appeal within 30 days after the entry of the order appealed from.
Fed. R. App. P. 4(a)(1)(A). Thus, Laltitude’s deadline to file a notice of appeal of the Court’s
Opinion and Order awarding attorneys’ fees was Monday, February 9, 2026.
On February 17, 2026, Laltitude filed its Motion for Leave to File Notice of Appeal Out
of Time. (ECF No. 53.) The following day, the Court ordered Dreambuilder to within 10 days of
the Order if it opposed Laltitude’s Motion. (ECF No. 54.) On the tenth day, Laltitude filed a
notice of appeal before Dreambuilder responded and without leave of the Court. (ECF No. 55.)
About two weeks later, a Sixth Circuit Order was filed on the docket stating that the
appeal was voluntarily dismissed by Laltitude under Federal Rule of Appellate Procedure 42(b).
Case: 2:22-cv-02911-EAS-KAJ Doc #: 62 Filed: 05/01/26 Page: 1 of 4 PAGEID #: <pageID>

2
(ECF No. 59.) Subsequently, the Court ordered Laltitude to notify the Court whether its Motion
for Leave to Appeal was moot given the voluntary dismissal of the appeal. (ECF No. 60.)
Laltitude’s response stated that it voluntarily dismissed the appeal “because it was filed
prematurely” and that its Motion is not moot. (ECF No. 61.) Accordingly, the Court proceeds to
consider Laltitude’s Motion.
ANALYSIS
Under the Federal Rule of Appellate Procedure 4, a district court may extend the parties’
time to file a notice of appeal upon a showing of “excusable neglect or good cause.” Fed. R.
App. P. 4(a)(5)(A)(ii). Laltitude moves under the excusable neglect prong. It asserts that from
approximately January 29, 2026 to February 10, 2026, its counsel, Joseph Farco, was
“unexpectedly and entirely unavailable to attend his professional obligations” because of the
“sudden and critical hospitalization of his minor child.” (ECF No. 53, PageID 415.) It contends
that Mr. Farco discovered the lapsed deadline upon returning to his duties and promptly filed the
instant Motion. (Id.)
Dreambuilder opposes Laltitude’s Motion. (ECF No. 56.) First, it highlights that Mr.
Farco is one of many attorneys representing Laltitude in this matter, all of whom were
presumably aware of the appeal deadline. (Id. PageID 431.) Second, it argues that Mr. Farco’s
family emergency did not render him unable to file a notice of appeal during the majority of the
30-day appeal window. (Id. PageID 432.) Lastly, it asserts that it would be prejudiced by further
proceedings because it has already expended substantial time and resources defending against
Laltitude’s “baseless litigation tactics” in this case. (Id. PageID 433.)
“Leave to file an untimely notice of appeal is to be granted only in unique or
extraordinary circumstances.” Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989). Courts
Case: 2:22-cv-02911-EAS-KAJ Doc #: 62 Filed: 05/01/26 Page: 2 of 4 PAGEID #: <pageID>

3
analyze excusable neglect by balancing the following factors: (1) the danger of prejudice to the
nonmoving party; (2) the length of the delay and its potential impact on judicial proceedings;
(3) the reason for the delay; (4) whether the delay was within the reasonable control of the
movant; and (5) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); see also United States v. Thompson, 82 F.3d 700,
702 (6th Cir. 1996)) (holding that the analysis in Pioneer applies to civil appeals under Rule
4(a)(5)). “The Pioneer factors ‘do not carry equal weight; the excuse given for the late filing
must have the greatest import.’” United States v. Munoz, 605 F.3d 359, 372 (6th Cir. 2010)
(quoting Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir.2000)).
Starting with Mr. Farco’s reason for his unavailability, the Court expresses sympathy for
the medical emergency involving his child. But the Court is not persuaded that Laltitude has
demonstrated excusable neglect. Mr. Farco is not the only attorney on this case. Four attorneys
have appeared as counsel of record in the case and, notably, Mr. Farco is not one of them.
Laltitude fails to explain why any of its attorneys of record were unable to file the notice of
appeal during Mr. Farco’s family emergency. See Culton v. Unifi Aviation, LLC, No. 25-1277,
2026 WL 1009174, at *2 (6th Cir. Apr. 14, 2026) (finding no excusable neglect where one of
four attorneys of record was unavailable). Further, Mr. Farco’s family emergency occurred
during the last 11 days of the appeal window, again with four attorneys of record representing
Laltitude who could have filed a notice of appeal sometime during the 30-day window.
The Court considers the remaining factors, starting with the length of the delay. Laltitude
filed its Motion eight days after the appeal deadline.1 Additionally, Laltitude’s premature filing
1 Laltitude incorrectly states the date its Motion was filed and thus incorrectly calculates the
number of days between the appeal deadline and filing of its Motion. (ECF No. 53, PageID 415.)
Case: 2:22-cv-02911-EAS-KAJ Doc #: 62 Filed: 05/01/26 Page: 3 of 4 PAGEID #: <pageID>

4
of the notice of appeal without leave of the Court resulted in an additional 18-day delay.
Nonetheless, the Court finds that these delays are not substantial.
The prejudice factor weighs in favor of Dreambuilder. Laltitude’s conduct in this case has
resulted in an already protracted dispute. The Court has previously found that Laltitude
prolonged this litigation by disavowing the settlement agreement, and on that basis awarded
Dreambuilder partial attorneys’ fees. (ECF Nos. 40, 52.) Further, Laltitude filed a premature
appeal without leave of the Court, requiring Dreambuilder to appear and participate in an appeal
that Laltitude later voluntarily dismissed. Dreambuilder would be prejudiced by further litigation
in this case, which would require it to expend additional time and resources.
Neither Party addresses the bad faith factor, thus neither does the Court.
Weighing the Pioneer factors, the Court concludes that Laltitude does not demonstrate
excusable neglect to warrant an extension of time to file an appeal under Rule 4(a)(5). Although
Mr. Farco may be able to show excusable neglect, the other attorneys of record on this case do
not. Accordingly, Plaintiff Laltitude’s Motion for Leave to File Notice of Appeal Out of Time
(ECF No. 53) is DENIED.
This case remains closed.
IT IS SO ORDERED.
5/1/2026 	s/Edmund A. Sargus, Jr.
DATE 	EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
The Motion was filed on February 17, not February 13, meaning that it was filed eight days after
the appeal deadline of February 9, 2026.
Case: 2:22-cv-02911-EAS-KAJ Doc #: 62 Filed: 05/01/26 Page: 4 of 4 PAGEID #: <pageID>