A cautionary tale on drafting and filing the notice of appeal

This is a cautionary tale about how to file a notice of appeal. The Court of Appeals holds the notice of appeal was defective because it did not clarify what issues the appellant wanted to raise. It was also untimely.

The case is Coker v. Goldberg & Associates, a summary order issued on October 28. Here's the thing about notices of appeal in the federal system: its requirements are jurisdictional, which means failure to comply with the rules is death. It is very difficult to get more time to file a late notice of appeal, and a defective notice of appeal will not be lightly excused. 

The context is that plaintiff worked for a law firm and was denied overtime pay. The district court granted summary judgment for the plaintiff in the amount of nearly $5,000. The court also granted plaintiff's motion for attorneys' fees and costs for approximately $45,000. It is not unusual for the fees to greatly exceed the damages. That is what happened here. The law firm wants to appeal from both the summary judgment and attorneys' fees order.

We have two problems: first the notice of appeal says the appellant wanted to appeal from the district court's ruling, dated May 21, 2024, which covered attorneys' fees. But the defendant's notice of appeal did not make reference to the district court's order, dated March 1, 2024, which granted summary judgment on the plaintiff's wage-and-hour claim under the Fair Labor Standards Act. Under the Federal Rules of Appellate Procedure, "a notice of appeal must designate the judgment ... from which the appeal is taken." Unfortunately for defendant-appellant, since the notice of appeal did not refer to the March 1, 2024 FLSA judgment, that issue was not preserved for appeal.

The second problem is timing. The notice of appeal was filed more than 30 days after the March 1, 2024 judgment granting summary judgment on the FLSA claim. The pendency of the plaintiff's attorneys' fees motion did not extend the deadline to appeal the summary judgment decision. Under Second Circuit law, "a decision on the merits is a final decision [under the final judgment statute] whether or not there remains for adjudication a request for attorneys' fees." Nor did the trial court enter an order delaying the running of the time to file an appeal until the entry or the order disposing of the fee motion." What it means is the Court of Appeals (Wesley, Lohier and Merriam) lacks jurisdiction to resolve the appeal from the March 1, 2024 FLSA judgment.

If you are uncertain about whether the notice of appeal contains the correct language, make sure it references the judgments you which to challenge on appeal, and if one final judgment was entered, you can identify that judgment in the notice of appeal. If you are unsure whether the notice of appeal is timely, file it early and then have the Court of Appeals place the appeal on hold while motions are pending in the district court.

The only issue properly before the Second Circuit, then, is the attorneys' fees ruling. But if you handle this kind of work, you know that challenging an attorneys' fees ruling on appeal very difficult, though not impossible. The Second Circuit will not second-guess the trial court's judgment about how much time was needed to prosecute the case, as the trial judge knows the procedural history of the case, and all the sub-issues, far more than an appellate court ever will. While the district court reduced the overall fees by 25% and not the requested 50% reduction, that determination fell with the trial court's broad discretion, and the Second Circuit affirms.