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Posted: October 7, 2015

Appeal Dismissed As Untimely Despite Appellant’s Observance of District Court Rules

On September 16, 2015, the Second Circuit issued a decision in Weitzner v. Cynosure, Inc., 14-723-CV, dismissing an appeal that was untimely only because the appellant followed the district judge’s rules regarding when to file a motion for reconsideration.

In Weitzner, the appellants “moved for reconsideration” of the EDNY’s decision dismissing their complaint, “but, in deference to the judge’s individual calendar rule prohibiting the filing of motions until the completion of briefing, did not file the motion until after passage of the 28-day time limit prescribed by Fed. R. App. P. 4(a)(4)(A)(vi) for the motion to toll the time for filing a notice of appeal.” Rather, the appellants filed their notice of appeal when the motion for reconsideration was denied.

The respondent argued that the appeal should be dismissed because of the failure timely to file the notice of appeal. The Second Circuit agreed and dismissed the appeal, explaining that the question it had to resolve was whether the appellants’:

failure to file within 28 days be equitably excused because the motion would have been filed within 28 days had they not delayed filing so as to comply with the district judge’s Individual Rule 3(d), requiring that filing be deferred until the motion is fully briefed. We are not at liberty, however, to grant plaintiffs equitable relief from the 28-day filing requirement unless that requirement should be deemed a “claim-processing” rule rather than a “jurisdictional” rule under the terminology adopted by the Supreme Court in Bowles v. Russell, 551 U.S. 205, 213 (2007). The Supreme Court ruled in Bowles that the 30-day time limit for the filing of a notice of appeal under FRAP Rule 4(a)(1)(A) is “jurisdictional” and therefore may not be waived for equitable reasons. Bowles explained that the litmus test for a “jurisdictional” rule is its institutional provenance: time limits that are mandated by statute (as opposed to those resulting from judicial recommendation with congressional acquiescence under 28 U.S.C. § 2074) are “jurisdictional,” meaning that they are not subject to waiver or equitable exception. . . . .

The very reasoning that led the Supreme Court in Bowles to the conclusion that the 30 days allowed under FRAP Rule 4(a)(1)(A) for a notice of appeal is “jurisdictional,” and thus not subject to waiver or equitable exception, suggests that the 28 days allowed for tolling under FRAP Rule 4(a)(4)(A)(vi) should be deemed not “jurisdictional.” It follows from the reasoning of Bowles that the 28-day time limit of FRAP Rule 4(a)(4)(A)(vi), which was adopted in a federal rule but not dictated by act of Congress, should be considered a “claim-processing rule,” which is subject to equitable exception or waiver.

Having ruled that the 28-day time limit could be equitably excused, one would think that the appellants’ appeal would then be found to have been timely. But no. The Second Circuit went on to dismiss the appeal, holding:

Nevertheless, considering a number of the factual circumstances, we conclude that Plaintiffs do not qualify for such an exception. It is true that, were it not for the district judge’s Individual Rule, Plaintiffs would in all likelihood have filed their Rule 60(b) motion within 28 days following judgment, and would therefore have qualified for tolling of their time to file notice of appeal. First, however, Plaintiffs had abundant opportunity to ask leave of the court to file the motion, and did not do so. Upon serving the motion, counsel filed a letter advising the court of the motion. The letter included no request to be allowed to file the motion promptly. Following the letter, and well within the allowable 28 days, counsel met with the judge to schedule the briefing and filing of the motion for reconsideration. Plaintiffs again had ample opportunity at that conference to ask the district judge to be excused from delaying the filing until the briefing of the motion was complete, so that the judge’s individual rule would not cause Plaintiffs to forfeit their right of appeal. Instead of making such a request, Plaintiffs consented to a scheduling order under which the motion for reconsideration would not be filed until after the passage of 28 days. Furthermore, Plaintiffs delayed their briefing and filing by several months after the date recited in the scheduling order without asking for leave to do so. Because Plaintiffs did not take any reasonable measures to preserve their rights, no unique circumstance exists to justify application of an exception to the filing requirements of Appellate Rule 4(a).

The court went on to try to explain why compliance with the trial court’s rule did not warrant a different result:

The possibility that a party might forfeit a meritorious appeal because the district judge announced a personal rule prohibiting the filing of motions is deeply troubling. As discussed above, it is not so troubling in the present case, first, because counsel had every opportunity to request relief from the district judge’s prohibition and failed to do so, and, second, because this appeal appears in any event to be without merit. Nonetheless, the capacity of such a rule to result in the forfeiture of a meritorious appeal is obvious.

An individual judge’s rule prohibiting the filing of a motion until the completion of briefing seems of doubtful consistency with the requirement of Fed. R. Civ. P. 5(d)(1) that any paper after the complaint that is required to be served must be filed within a reasonable time after service. Furthermore, because important litigating rights can be forfeited by the failure to file a motion within a specified number of days, it seems clear that a judge’s adoption of a rule that prohibits reasonably prompt filing runs the risk of causing litigants to lose important litigating rights, including the right to seek on appeal to overturn an erroneous judgment.

Fifteen years ago in Camacho v. City of Yonkers, we noted that a judge’s individual rule requiring litigants to delay the filing of a motion (in that case the rule required delaying the filing until after a conference with the court) was likely to serve as a snare for the unwary litigant. We urged district courts to modify such rules so they do not lead the unwitting to believe they have preserved a right to appeal when in fact they have not. In spite of that exhortation, we have found in studying this forfeited appeal that numerous district judges in this circuit continued to publish individual rules that prohibit the filing of a motion, either until after a conference with the court, or until completion of briefing on the motion. It is a virtual certainty that such rules will continue, on occasion, to cause litigants to forfeit important rights in the good-faith, but erroneous, belief that they cannot be held to have defaulted for failure to file a motion when they are commanded by the judge not to file the motion.

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.

(Internal quotations and citations omitted).

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