This is why lawyers drink

Some of the Federal Rules of Civil Procedure are rigid. So rigid that your life will be worth garbage if you violate them. The Notice of Appeal deadline is one of them. This party learns it the hard way.

The case is Weitzner v. Cynosure, Inc., decided on September 16. You have 30 days from entry of judgment to file the Notice of Appeal. Since this rule is jurisdictional, even filing the Notice a day later is too late. There are a few exceptions, though. If you file a timely motion for reconsideration of the district court's ruling, then the Notice of Appeal deadline is extended until the judge resolves the motion for reconsideration. But that motion must be filed within 28 days after the judgment is entered.

Got that? In this case, plaintiffs alleged that defendant violated the Telephone Consumer Protection Act. Ruling for the defendant, the district court entered judgment on March 5, 2013. On March 15, 2013, plaintiffs served on defendant a motion for reconsideration, but they did not file it with the district court. Plaintiffs failed to file it with the court pursuant to the district court's Individual Practice Rule, which says you file the motion papers after the motion is fully briefed and ready for adjudication. Many district judges utilize that rule, which allows the motion to be docketed in the court's computerized system only when the motion is fully briefed, I suspect because the court's internal deadline to decide the motion does not begin to run until the system is aware that the motion was filed. We call this delayed filing system "bundling." Since motions can take weeks or even months to be fully briefed, bundling means that the motion for reconsideration is not filed with the court within 28 days of entry of the original judgment, even if it was served on the other side right away. That is what happened in this case. The motion for reconsideration was "filed" on August 14, 2013. The district court denied that motion on February 6, 2014. Plaintiff filed a Notice of Appeal from the March 5, 2013 judgment on March 6, 2014.

So what we have is a rigid 30-day Notice of Appeal deadline and a 28-day deadline to file the motion for reconsideration, which tolls the deadline for the Notice of Appeal. We also have the practice of many district court judges who do not want you to file the reconsideration motion until it is fully briefed, more than 28 days after judgment is entered. We all have to follow district court rules, right? Is that a good excuse for the "untimely" filing of a motion for reconsideration, which in turn makes the Notice of Appeal an untimely filing as well? It is not.

The district court may extend the 28-day requirement to file the motion for reconsideration. But plaintiffs do not qualify for that extension because they could have asked the district court for permission to file the motion within 28 days. Failure to do so, the Second Circuit (Leval, Chin and Carney) says, was unreasonable. Since the reconsideration motion was not timely filed (even though it was timely drafted and served on the other side), then the Notice of Appeal is untimely as well. The appeal is dismissed.

The Court of Appeals notes that many district courts require the parties to bundle their motions and that this means motions for reconsideration will be filed more than 28 days from entry of judgment, which will make the appeal untimely. The Court suggests the bundling rule violates the Federal Rules of Civil Procedure, which requires that motions be filed shortly after they are served. The Court concludes by stating,

While it is true that in many cases counsel will have the opportunity, as in this case, to ask the judge’s leave to file without delay, a judge is not always available to deal promptly with an emergency application. Nor is there a guarantee that all judges will reasonably grant an exception from compliance with their rules. Litigants should not be put in the position of risking to be held in contempt for violation of the court’s rules – simply for filing with the court a paper whose filing is not only permitted, but also required, by the federal rules.We have no doubt that the purpose of such individual calendar rules is to assist district courts in dealing with significant administrative burdens. Nonetheless, we are confident that the useful objectives of such rules could be achieved in a manner that would avoid these unacceptable pitfalls. We very strongly recommend that district courts promptly review their individual rules and practices so as to eliminate the unacceptable risk that litigants will forfeit rights because of observance of rules promulgated by individual judges, especially with regard to rules that are of questionable consistency with the governing provisions of the federal rules and statutes.