Court of Appeals clarifies the deadline for filing a notice of appeal

This case is enough to give any litigator a heart attack. The Court of Appeals examines whether the plaintiff blew a deadline to proceed with the appeal after he filed the notice of appeal following the trial court's resolution of a motion for reconsideration.

The case is Malek v. Feigenbaum, issued on September 11. After the district court dismissed the case, plaintiff filed a motion for reconsideration. Under the rules, a timely notice for reconsideration tolls the deadline to file a notice of appeal until the motion for reconsideration is denied. The motion is timely when the plaintiff officially files the motion on the docket through the ECF system. In Weitzner v. Cynosure, Inc., 802 F.3d 307 (2d Cir. 2015), the Court of Appeals said it is not enough to simply serve the motion for reconsideration and then file it on the docket at a later time. The reason this became an issue is that some judges want attorneys to initially serve, but not file, the reconsideration motion, which would be filed after the parties have completed their briefing on the motion. The reason for this process, I believe, is that some judges do not want the motion on the docket right away because placement on the docket triggers the six-month recommended time period for judges to resolve their motions. Serving and then filing later on will delay the start of the six-month deadline. We call that "bundling" the motion.

In this case, after the trial court dismissed the case, plaintiff's counsel served the motion for reconsideration but did not file it until later on, which made the notice of appeal from the denial of the reconsideration motion untimely, depriving the Court of Appeals of jurisdiction to hear the appeal. The judge's rules cautioned attorneys about the Weitzner holding and said they should file motions on the docket right away if the delayed filing might violate the deadline for a notice of appeal.

Plaintiff argued that the Court of Appeals Walker, Menashi and Choudhury, D.J.]) was in fact able to hear the appeal based on an "equitable tolling" argument: that the deadline should be extended for equitable reasons, i.e., fairness. Weitzner said that was one way around the timeliness argument. The problem is that the Federal Rules of Appellate Procedure were amended in 2016, and the Supreme Court issued Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019). The Supreme Court ruling said that deadlines such as the one in this case may be extended if the defendant fails to object to timeliness. But the Court did not say in that case that equitable tolling was another argument for plaintiffs to invoke in extending the deadline. The Supreme Court ruling deprives plaintiff of this argument, and the notice of appeal was therefore untimely.

As for the 2016 amendment to the Federal Rules of Appellate Procedure, the relevant provision reads:

If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion

Plaintiff argues that this provision helps his cause because it delegates control over the service and filing of the motion to the district court. But the Second Circuit does not see it that way and, following careful review of the amended rule and the Advisory Committee notes, holds that the 2016 amendment does not abrogate Weitzner. The notice of appeal in this case remains untimely and the case is over.