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Losing the Appeal Before Your File It

An appeal can be lost before it is ever filed. The U.S. circuit courts have shown that they take seriously the Federal Rules of Appellate Procedure's 30-day limitation to file an appeal. As recent decisions illustrate, failing to take a timely appeal will result in its dismissal.

Second Circuit

In Communications Network International v. MCI WorldCom Communications (2d Cir. Jan. 24, 2013), CNI appealed various adverse rulings of the U.S. Bankruptcy Court to the district court. In the district court, CNI's counsel had moved for admission pro hac vice (which was granted), but that motion listed a different email address than the one he had previously registered with the ECF clerk. Because he had not updated his email address with the ECF clerk, CNI's counsel did not receive electronic notice of the district court's affirmance of the Bankruptcy Court's rulings by memorandum decision on Sept. 14, 2010, or the judgment that it entered on Sept. 24, 2010. As a result, CNI did not appeal these decisions until the 30-day window to do so had expired, and also did not move to enlarge its time to appeal under Fed. R. App. P. 4(a)(5).

MCI moved to dismiss the appeal as untimely. The next day, CNI moved in the district court to reopen its time to appeal under Fed. R. App. P. 4(a)(6). The district court granted this motion because CNI satisfied Rule 4(a)(6)'s express requirements—(i) it did not receive notice under Fed. R. Civ. P. 77(d) of entry of the judgment or order appealed from within 21 days after entry; (ii) the motion was filed within 180 days after the judgment or order was entered or within 14 days after the moving party received notice under Fed. R. Civ. P. 77(d) of the entry, whichever was earlier; and (iii) the court found no party would be prejudiced. On appeal, the U.S. Court of Appeals for the Second Circuit agreed with the district court's conclusion that CNI had satisfied Rule 4(a)(6)'s requirements.

Over Judge Gerard Lynch's dissent, however, the court stated that "satisfaction of the three conditions of Rule 4(a)(6) is not the end of the matter." Instead, even if the requirements are met, the extension still must be within the district court's discretion, and the Second Circuit concluded that it was not.

In reaching this conclusion, the Second Circuit reasoned that Rule 77(d) notice is meant "merely for the convenience of litigants" and that litigants "at all times have an 'obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal.'" Moreover, while "the purpose of [Rule 4(a)(6)] was to ease strict sanctions on litigants who had failed to receive notice of the entry of judgment in order to file a timely appeal…[t]here is nothing in the history of the rules…to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves."

Recognizing that it was "the first court of appeals to identify an abuse of discretion in a district court's grant of a Rule 4(a)(6) motion where the preconditions for relief were met," the Second Circuit stated that a district court exercising its discretion under Rule 4(a)(6) should "give substantial weight to indications that the failure of receipt was the litigant's fault." In this case, the court concluded that CNI's counsel had failed to comply with his obligation to update the ECF system with his new email address, and that failure (and not something outside CNI's control) was the reason for CNI's untimely appeal. Moreover, the court also found significant that CNI had not moved to enlarge its time to appeal under Fed. R. App. P. 4(a)(5).

In his dissent, Lynch agreed that while there may be situations in which a district court abuses its discretion in granting relief under Rule 4(a)(6), this was not such an instance. Here, counsel was an out-of-state lawyer admitted pro hac vice who apparently believed that his PHV motion, which listed his current email address, was sufficient to notify the ECF clerk of the change. Thus, Lynch did not believe that the district court had abused its discretion in extending CNI's time to appeal. Moreover, Lynch warned that the Second Circuit was "categorically hold[ing] that the district court abuse[s] its discretion by awarding relief because appellant was at fault by failing to update its counsel's e-mail address." According to Lynch, this requirement of "lack of fault" effectively imposed a condition that was not otherwise found in the rule.

In the second case (where the author's firm represented the defendant), the defendant moved to dismiss a lawsuit in the Southern District of New York on forum non conveniens grounds, which the district court granted in July 2009. However, to address plaintiff's arguments about delays in the foreign court system, the district court dismissed the action without prejudice to plaintiff's right to seek to reopen the case at a later date based on the progress of any foreign litigation. Plaintiff did not appeal this dismissal to the Second Circuit. Rather, it proceeded to file an action in the foreign court.

In May 2011, the plaintiff moved to reopen the district court case. This motion was denied by the district court, after which the plaintiff appealed both the denial of the motion to reopen and the underlying forum non conveniens dismissal to the Second Circuit. The defendant, however, then moved to dismiss the appeal from the earlier, underlying dismissal, arguing that the plaintiff had not appealed within the required 30-day time limit. As the defendant explained, an order is "final and appealable" if it resolves the case and leaves nothing to be done except enforce the court's decision.1

Here, the defendant argued, the underlying dismissal, while without prejudice to plaintiff's right to seek relief from the dismissal at a later time based on developments in the foreign court, nevertheless was a "final" decision that did not require any further steps to end the lawsuit. Thus, to the extent the plaintiff was challenging the decision ordering it to litigate in a foreign jurisdiction, it was required to take any appeal within 30 days of that order. The Second Circuit granted defendant's motion to dismiss the appeal from the underlying dismissal, and limited plaintiff's appeal solely to the district court's denial of the motion to reopen (which it subsequently affirmed).

Fourth Circuit

In Symbionics v. Ortlieb, 432 Fed. Appx. 216 (4th Cir. May 23, 2011), following a bench trial, the district court entered judgment on the various claims on Dec. 4, 2009. The plaintiff filed a notice of appeal on Jan. 5, 2010, one day after the Federal Rules' 30-day limit expired. On Jan. 7, 2010, plaintiff filed a timely motion for an extension of time to file a notice of appeal, asking the district court to extend its time to appeal until Jan. 5. Plaintiff explained that its counsel used the Microsoft Windows calendar to calculate the date on which the 30-day period to appeal would end. After counting 27 days through Dec. 31, 2009, counsel changed the month on the calendar display to January, but failed to notice that the calendar did not automatically advance to January 2010, but instead reverted to January 2009, thus resulting in counsel's erroneous calculation.

The district court granted plaintiff's motion for an extension of time, concluding that its delay was the result of excusable neglect. On appeal, however, the U.S. Court of Appeals for the Fourth Circuit noted that a district court should find excusable neglect only in "extraordinary circumstances" where injustice would otherwise result. According to the court, "counsel's total dependence on a computer application—the operation of which counsel did not completely comprehend—to determine the filing deadline for a notice of appeal is neither 'extraneous' to nor 'independent' of counsel's negligence." Rather, counsel's failure to note that the Windows calendar had reverted to 2009, instead of advancing to 2010, was "the very essence of counsel's negligence here." Accordingly, the Fourth Circuit concluded that the district court abused its discretion in extending plaintiff's time to appeal.

Seventh Circuit

In Raven v. Madison Area Technical College, 443 Fed. Appx. 210 (7th Cir. Sept. 21, 2011), the plaintiff alleged that the defendants violated her civil rights by allegedly expelling her from school based on her race. The magistrate judge granted the college summary judgment, and plaintiff's motion for reconsideration was denied. Plaintiff then moved for additional time to file her appeal, which was granted and the magistrate explained that plaintiff had until April 15, 2011 to file her notice of appeal. Plaintiff, however, did not do so until April 18, 2011.

The U.S. Court of Appeals for the Seventh Circuit ordered the plaintiff to explain why her appeal should not be dismissed as untimely. It also invited her to ask the district court for more time, under Fed. R. App. P. 4(a)(5), to file her notice of appeal. In her motion to the district court, the plaintiff offered no reason for her delay in appealing. The magistrate judge, however, noted that plaintiff's pro se response to the Seventh Circuit attributed her delay to the circuit clerk's office, which plaintiff contended did not file her appeal for a day or two after they received it. While noting that blaming the clerk's office for her delay "stretches the definition of good cause and excusable neglect to their breaking points," the magistrate judge decided to "cut [plaintiff] some slack because she is a pro se and doesn't comprehend how seriously federal courts take their deadlines…" Additionally, the magistrate judge speculated that "mailing delays" may have contributed to the late filing, even though plaintiff had not raised this argument.

On appeal, the Seventh Circuit stated that a district court is "empowered to extend [the time to appeal] if, but only if, [plaintiff] showed that excusable neglect explained the untimeliness." Here, plaintiff provided no reason for her delay in taking an appeal, and the district court was not entitled to speculate as to why plaintiff had been late. Moreover, to the extent plaintiff's appeal was late because she miscalculated her time to appeal, such errors are "egregious" and the appellee does not need to show that it was prejudiced by the delay. Because plaintiff provided no reason for her delay in taking an appeal, the Seventh Circuit concluded that the district court should not have granted her motion for an extension of time and abused its discretion in doing so.

Eleventh Circuit

In Green v. Drug Enforcement Administration, 606 F.3d 1296 (11th Cir. 2010), the district court dismissed plaintiff's complaint and entered judgment on Aug. 17, 2007. Ten days later, plaintiff moved for a seven-day extension of time to move for reconsideration, which was granted. This motion for reconsideration was subsequently denied on Sept. 10, 2007, and plaintiff appealed on Nov. 7, 2007.

Plaintiff's appeal focused solely on the dismissal, which was entered on Aug. 17. Under Fed. R. App. P. 4(a), an appeal may be taken within 60 days where the United States is a party. Plaintiff's appeal, however, was taken 81 days after the Aug. 17 dismissal.

While a timely filed Rule 59(e) motion to alter or amend a judgment tolls the time limit to appeal, that motion must be filed within the time provided by Rule 59(e) (at the time 10 days, excluding weekends and holidays), which cannot be extended. Therefore, the district court's extension of time to seek reconsideration did not extend plaintiff's time to file a Rule 59(e) motion. Because plaintiff failed to file a timely Rule 59(e), that motion did not toll his time to take an appeal from the dismissal. Accordingly, the U.S. Court of Appeals for the Eleventh Circuit dismissed his appeal as untimely.

Important Takeaways

There are several important lessons to be learned from these cases.

First, counsel should ensure that his or her contact information on file with the ECF clerk is current, and that the docket is being monitored for any developments. Counsel should thoroughly review all applicable rules, and confirm that he or she has accurately computed all relevant deadlines.

Second, if a deadline does pass because counsel was not notified of the underlying order or judgment, that party should seek to enlarge its time to appeal under Fed. R. App. P. 4(a)(5) if such a motion is still timely. Failing to make that motion could be considered additional negligence. Additionally, any such motion must provide concrete, legitimate reasons why good cause exists and why the party was not negligent in failing to take a timely appeal.

Third, if a party has to seek relief under Rule 4(a)(6), it is import

ant to show that neither the party nor its counsel was the cause of the lack of notice.

Fourth, a party should not assume that a dismissal does not have to be appealed immediately simply because the court may permit further proceedings at a later time (indeed, even years later). Rather, a critical issue is whether the dismissal requires the court to take any further steps to dismiss the case. For example, in the second case discussed above, while the plaintiff could choose to seek to reopen its case potentially years later, the court's dismissal became effective when it was issued in July 2009 and did not require any further action. If the dismissal does not require any further action, then it likely must be appealed within 30 days, whether or not the court might allow the adverse party to seek relief from it at a later time.

Finally, as a practical matter, litigants should err on the side of caution and file an appeal if the dismissal could reasonably be considered final and appealable. If a party takes an appeal prematurely, the circuit court will dismiss it without prejudice to the appellant's right to re-file at the appropriate time. If, however, the appellant fails to take an appeal in a timely manner, the court will dismiss the appeal as untimely, and the appellant will likely lose its chance to challenge the underlying dismissal. Therefore, where the issue presents a close call, counsel would be wise to take a prompt appeal. The relative costs incurred in doing so are significantly outweighed by the potential risk of losing the right to appeal.

Kevin F. Meade is a senior associate at Weil, Gotshal & Manges.


1. See, e.g., Caitlin v. United States, 324 U.S. 229, 236 (1945); Petereit v. S.B. Thomas Inc., 63 F.3d 1169, 1175 (2d Cir. 1995) ("In this case Thomas purports to invoke our jurisdiction to review a final judgment of the district court. A judgment is considered final when the trial court has conclusively adjudicated all the issues before it and there remains nothing left for it to do but execute the order").

Reprinted with permission from the March 19, 2013 issue of the New York Law Journal. ©2013 ALM Media Properties, IIC. Further duplication without permission is prohibited. All rights reserved.