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Posted: June 2, 2014

Failure To Appeal Revised Judgment Prevents Appeal Of Original Judgment

On May 27, 2014, the Second Circuit issued a decision in United States v. Pelt, No. 13-1972-CV, dismissing an appeal from the EDNY.

In Pelt, the defendant, an attorney appearing pro se, filed a notice of appeal of a “partial judgment in favor of the United States on claims that [she] failed to repay her student loans.” At the same time, the defendant filed her Notice of Appeal, she also moved in the EDNY to vacate the judgment.  The EDNY granted her motion in part and entered a new judgment.  The defendant did not file another Notice of Appeal.  The Second Circuit subsequently dismissed the appeal she had filed, explaining:

In these circumstances we are obliged to dismiss [the defendant’s] appeal for lack of jurisdiction. Insofar as [the defendant] appeals from the partial summary judgment entered on March 22, 2013, that is not, by itself, a final judgment over which we may exercise jurisdiction. The Rules of Civil Procedure permit a district court to enter final judgment as to one or more, but fewer than all, claims only if the court expressly determines that there is no just reason for delay; without such an express determination, any order or other decision, however designated does not end the action and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. The partial judgment entered on March 22, 2013, does not mention Rule 54(b) or expressly determine that there is no just reason for delay. Accordingly, that partial judgment was never certified for appeal.

We have held that, where an appellant files a notice of appeal before final judgment is entered, that premature notice of appeal may ripen into a valid notice of appeal if a final judgment has been entered by the time the appeal is heard and the appellee suffers no prejudice. But there is no reason to apply that principle here, where [the defendant] filed a timely—not a premature—notice of appeal from a judgment that was then vacated. In such circumstances, she was obliged to file a timely notice of appeal from the final judgment entered on November 20, 2013. In the absence of such a notice, we lack jurisdiction to hear the appeal.

(Internal quotations and citations omitted) (emphasis added).

Few things are as unforgiving in the law as the rules for timely filing appeals.

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