2d Circuit says that some post trial motions may be filed out-of-time

This issue may put you to sleep, but if you are a federal litigator, you need to read this. The rules that we thought were etched in stone have been changed, and it has consequences for trial practice.

The case is Legg v. County of Ulster, decided on April 26. I argued this appeal, so let's try to be neutral here. This case got some attention because the Court of Appeals clarified what it takes to win a pregnancy discrimination case under Title VII. Read about it at this link. The Court also took up the County's appeal from a sexual harassment verdict won by a second plaintiff, Watson, who was awarded $400,000 for sexual harassment. That claim is the subject of this blog post.

After the jury returned the verdict, the County wanted to file post trial motions to vacate the verdict. This is standard procedure. Under the rules, you have 28 days to file that motion. The County wanted more time for the motion, and the Court agreed. When the motion was filed more than 28 days later, the Court sua sponte denied the motion as untimely, citing cases holding that the 28 day rule is jurisdictional and cannot be extended for any reason, ever, even if the non-moving party agrees to the extension. When the County filed a motion for reconsideration of that ruling, the Court again rejected the late filing. The County appealed from that ruling that denied the untimely post trial motion.

It is true that in the past, the Second Circuit held firm to the jurisdictional prohibition against filing post trial motions more than 28 days after entry of judgment. But the Second Circuit (Parker, Carney and Lynch) holds that this rule is not so iron-clad, and it is no longer a jurisdictional rule, ever since the Supreme Court in 2005 said that not all mandatory deadlines are jurisdictional. Since only Congress can enact rules affecting a court's jurisdiction to hear cases, and the 28 day rule is not a congressional statute but a "claims processing" rule handed down by the Supreme Court, that rule -- while still strict -- may be extended if the nonmoving party waives its right to strict enforcement of that rule.

If the 28 day rule was violated in this case but plaintiff waived its strict enforcement, then the district court had authority to resolve the County's post-trial motions. If there was no waiver, then the district court had to reject the motion out of hand without even reading the papers. The case is remanded to the district court decide whether plaintiff waived strict enforcement of the 28 day rule. As the Court of Appeals notes, "Although the plaintiffs never objected in the district court, it is not clear whether they had an effective opportunity do do so given the district court's quick denial of the motion and of reconsideration." Under the circumstances, the district court must decide if plaintiff waived objection to the court's improper grant of an extension of time or whether an equitable exception to prohibition of such extensions applied in this case.