When does a party waive her objection to an untimely Rule 50/59 motion?

It took the Court of Appeals two years to decide this Title VII sexual harassment claim. One reason for that may have been the threshold procedural questions that the Court had to resolve before it reached the merits of the appeal. These procedural issues may be snoozeville for some readers, but they are important for federal practitioners.

The case is Legg v. County of Ulster, issued on October 29. I argued this appeal in September 2018. It was a different world. There was no pandemic, the mid-term elections hadn't happened yet, and oral argument day was the same day that the Senate took up the Brett Kavanaugh case. That was two Supreme Court appointments ago.

I will discuss issue number 1 in this blog post. The second issue will arrive tomorrow. Issue number 1 is: when does a party waive her objection to her opponent's failure to comply with the 28-day deadline to file post-trial motions? It's not like I am trying to persuade you to continue reading, but while this issue is a little dry, this really is an important issue if you try cases in federal court. Once the jury enters a verdict and the trial court issues a judgment, if the losing party wants to file a motion to vacate the verdict outright under Rule 50 or demand a new trial under Rule 59, he has to file that motion in 28 days. In 2016, when this case first reached the Second Circuit, the Court of Appeals said for the first time that the 28-day deadline is not jurisdictional but a claim-processing rule that still must be followed. Jurisdiction deadlines (those which are created by Congress) cannot be waived. Claim-processing deadlines (those which are created by the courts) can be waived. But if the moving party files the motion too late, the deadline is not self-enforcing. The trial court can deny the motion as untimely if the other party objects to his adversary's untimely filing. But that objection can be waived if you don't raise it in time. In that decision, reported at 820 F.3d 67 (2d Cir. 2020), the Court of Appeals remanded this case to the Northern District of New York to determine if the plaintiff had waived her objection to the County's untimely post-trial motion to vacate the favorable sexual harassment verdict.

This issue arose because, when the jury entered its verdict in August 2014, before the parties left the courtroom, the judge discussed the schedule for post-trial motions. The court gave the county's attorney two weeks after receipt of the trial transcript to file the motion. Plaintiff's counsel was OK with that schedule. No one objected. On its face, that schedule did not violate the 28-day rule, since the transcripts could have arrived within 28 days. But they did not; they arrived after the 28-day deadline had expired. When the County filed its post-trial motions under Rules 50/59, the trial court denied them right away, holding that they were untimely and the deadline was a jurisdictional rule that could not be extended even if the judge had proposed the extension and no one had objected. That was the rule at the time in the Second Circuit. The County appealed from that ruling and, in the 2016 decision, the Second Circuit said this is actually not a jurisdictional rule and that plaintiff's counsel may have waived the objection to the untimely deadline. On remand, the district court said that plaintiff's counsel had constructively waived that objection by remaining silent when the trial judge set forth the schedule.

The Second Circuit (Hall, Carney and Lynch) writes, "we now clarify the circumstances under which a litigant may fairly be deemed to have forfeited such an objection to timeliness." It rules that plaintiff's counsel forfeited the objection. "When a district court grants such an extension and a party has an opportunity to objected contemporaneously with the extension's grant, a party forfeits any objection to the timeliness of the motions by failing to do so at the time." This is so even if the court proposes the extension, or whether the opposing party requested it. The Second Circuit declines to follow the rule set out in Dill v. General American Life Ins., 525 F.3d 612 (8th Cir. 2008), which holds that the nonmoving party's objection is not untimely when he asserts it before the district court issues a ruling on the merits. Under Dill, you can make the objection in your brief in opposition to to the untimely post-trial motion, which is what the plaintiff did in Legg v. County of Ulster. While the plaintiff in Legg may not have knowingly waived her right to make a timeliness objection, since there was no way of knowing when the transcripts would arrive, the Court of Appeals still finds that plaintiff waived her right to object.

Even if plaintiff waived her objection, however, it did not affect the merits of the County's sexual harassment appeal, as the Second Circuit holds that the jury had a basis to find in plaintiff's favor on that claim. That's the same result as if the Court of Appeals had ruled the post-trial motion was untimely and therefore a nullity. What the waiver did accomplish was allow the trial court to reduce the damages award from $200,000 to $75,000 for pain and suffering. I discuss all of that in this blog post.