Posted: November 25, 2015

Appeal Dismissed As Untimely Based on Unsuccessful Attempt to E-File

On October 30, 2015, the Second Circuit issued a decision in Franklin v. McHugh, No. 14‐4096‐CV, dismissing an appeal as untimely because the electronic filing of the notice of appeal, although timely attempted (and believed by counsel to have been timely made) was not successfully processed by the court’s electronic filing system.

In Franklin, the appellant’s counsel “attempted to file” a notice of appeal from an adverse decision of the EDNY “electronically through the Case Management/Electronic Case Files (“CM/ECF”) system . . . .” He “uploaded the notice of appeal and other requisite documents to the CM/ECF system on that day and paid the required $505 filing fee by accessing, the federal government website for making payments to government agencies” and “received an email from transmitting a receipt for his payment.” However, the CM/ECF system did not register the notice of appeal on the court docket on October 23 or, indeed, on any day from then through October 27.  Rather, on October 28, after” appellant’s counsel “learned that the District Court docket sheet (operated through CM/ECF) did not reflect the notice of appeal, his office contacted the Eastern District’s Clerk’s Office,” which told him to refile the documents, and pay the fee again,” which he did. Appellant’s counsel “was assured that the initial receipt of October 23, 2014 would stand as proof that” he “did timely file, but due to issues with the ECF system the notice of appeal did not get properly docketed.”

The respondent moved to dismiss the appeal as untimely. The Second Circuit granted the motion. It began by reciting the established rule that “[t]he timely filing of a notice of appeal in a civil case is a prerequisite to the appellate court’s jurisdiction” and “is not subject to judicially created equitable exceptions.” It went on to address whether appellant had timely filed the notice of appeal.

The court examined the local rules relating to electronic filing, explaining:

[T]the Joint Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York direct parties serving and filing papers to follow the instructions regarding Electronic Case Filing (ECF) published on the website of each respective Court. They confirm that a document filed by electronic means in accordance with such instructions will be deemed properly filed. The Eastern District publishes its instructions for electronic filing in that court’s CM/ECF User’s Guide, available on its website.  As relevant here, it instructs:

Upon completion of an electronic filing the last screen you see is a Notice [o]f Electronic Filing screen. This screen will tell you, among other things, the document number assigned to your document; will contain your electronic file stamp; and, at the bottom of the page, will notify you that a notice will be, or will not be, electronically mailed to counsel.

Although the Eastern District’s instruction could have been more explicit, it plainly implies that an electronic filing is not complete until the last screen, called “Notice of Electronic Filing,” appears on the user’s computer.   

(Internal quotations and citations omitted). The court went on to find that:

although [the appellant’s] counsel undoubtedly intended to file a notice of appeal electronically on October 23, 2014, his efforts fell short of the mark.  His account of his attempt to file electronically a notice of appeal on October 23 suggests strongly that counsel simply overlooked the last step of the process: he appears to have followed the electronic filing process through the fee‐paying stage only, stopping upon receiving the receipt for payment.  He does not represent that he proceeded past that point or that he received the critical Notice of Electronic Filing screen; and he appears to have failed at the time to notice the shortcoming.
As described in the User’s Guide, only the appearance of the Notice of Electronic Filing screen would have confirmed that the notice of appeal was actually filed and docketed.  The notice of appeal therefore was not “filed” with the Eastern District’s Clerk’s Office on October 23, and our Court is not at liberty to treat it as having been filed then.  Rather, the record is plain that the notice was filed—untimely—on October 28, 2014.

(Internal quotations and citations omitted). The court suggested that the error might have been curable, but that appellant’s counsel failed to do so, explaining:

This is not to say that there might not be occasions in which a true malfunction in the CM/ECF system or in Internet operation prevents or somehow distorts a timely electronic filing.  In such an instance, the federal rules provide for the vigilant counsel a path to relief in the district courts from the otherwise unforgiving deadline that we apply here: Federal Rule of Appellate Procedure 4(a)(5)(A) empowers a district court to extend the time to file a notice of appeal if a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires and shows excusable neglect or good cause.  Thus, after [the appellant’s] counsel learned on October 28 that his October 23 notice of appeal was not in fact filed, he might have moved the District Court, within 30 days after the appeal deadline to extend the time for filing his notice of appeal.  Absent an extension, however, . . . our Court cannot accept [the appellant’s] notice of appeal as timely.  And the District Court no longer has authority to alter [the appellant’s] time to appeal.

(Internal quotations and citations omitted).

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