Last week saw a variety of issues with the filing, timing, and content of notices of appeal.
February 9, 2021
Most appeals begin with the filing of a notice of appeal. Those notices have both content and timing requirements. Under Federal Rule of Appellate Procedure 3(c), a notice must specify three things: the appealing parties, the appealed order or judgment, and the court to which the party is appealing. As for timing, Rule 4(a)(1) requires that most civil appeals be filed within 30 days of the appealed order or judgment. Some of these requirements are quite strict. A late notice of appeal, for example, forfeits the right to appeal, though various means exist to extend or restart the appeal deadline. The failure to meet other requirements can be excused, and Rule 3(c)(4) says that “[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.”
Last week, several courts of appeals addressed issues with a notice of appeal’s filing, timing, or content. As for filing, the Sixth Circuit held that a paper notice of appeal was sufficient, even though local rules required electronic filing. In contrast, the Seventh Circuit held that an emailed notice was not effectively filed. Timing issues arose in both the Eleventh and Third Circuits. The Eleventh Circuit held that a pro se, post-judgment motion from a represented party could delay the start of the appeal clock. And the Third Circuit held that a premature notices of appeal related forward to the district court’s final judgment. Finally, as for content, the Eleventh Circuit reminded litigants that designating the district court’s final judgment is sufficient to appeal all interlocutory decisions that merge into that judgment.
Let’s start with some alternative ways of filing a notice of appeal.
The Sixth Circuit Held that a Paper Notice of Appeal Sufficed
In Pierce v. Ocwen Loan Servicing, LLC, the Sixth Circuit held that a paper notice of appeal was valid even though the local rules required electronic filing.
After losing at summary judgment, the plaintiffs in Pierce intended to appeal. The last day to file their notice of appeal fell on a Friday. That Friday afternoon, the plaintiffs’ lawyer placed a paper notice—and a check for the filing fee—in a drop box provided by the district court. On the following Monday, the clerk informed the lawyer that local rules required electronic filing for notices of appeal. The clerk mailed back the paper notice. But the clerk also kept the check. The lawyer then filed an electronic notice of appeal on that Monday. Thinking that the electronic notice was late, the defendants in Pierce moved to dismiss the appeal.
The Sixth Circuit held that the paper notice was sufficient. Federal Rule of Appellate Procedure 5(d)(2) requires that a party file a notice by delivering it to the clerk. “Placing the notice of appeal in a drop box designated for court documents suffices.” After all, the “drop box serves as an invitation to file court documents, precluding a court from treating its use by a party as a trespass or a non-event.” Indeed, any suggestion that the paper notice was insufficient could not be reconciled with the clerk’s keeping the check. And “imperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court.” Granted, a local rule required electronic filing. But that local rule cannot abrogate appellate jurisdiction. The Sixth Circuit accordingly denied the motion to dismiss the appeal.
Pierce v. Ocwen Loan Servicing, LLC, 2021 WL 386554 (6th Cir. Feb. 4, 2021), available at the Sixth Circuit and Westlaw.
The Seventh Circuit Held that an Emailed Notice of Appeal Was Invalid
In Brooks v. SAC Wireless, LLC, the Seventh Circuit held that a notice of appeal emailed to the district court judge was not properly filed.
The plaintiff in Brooks was pro se. And three times in the course of district court proceedings, the judge invited or allowed the plaintiff to email filings directly to the judge. The district court eventually dismissed the plaintiff’s claims as a discovery sanction. On the last day to file a notice of appeal, the plaintiff emailed his notice to the district court judge. He also mailed a notice of appeal, but he did so only after the time to file had passed.
The Seventh Circuit held that the emailed notice was insufficient. Relying on the D.C. Circuit’s decision in United States v. Brown, the court asked whether the district court judge had “knowingly accepted the filing.” And the court found no evidence that the judge had done so. The district court judge had not agreed—explicitly or implicitly—to an alternative-filing arrangement whereby any document could be emailed. The three occasions on which email filing was allowed or invited were unique and did not create an arrangement for email filing in general. Further, the plaintiff’s subjective belief to the contrary did not change the analysis.
With the emailed notice of appeal invalid, all that remained was the paper notice. And the plaintiff filed that notice out of time. The Seventh Circuit accordingly dismissed the appeal.
Brooks v. SAC Wireless, LLC, 2021 WL 406438 (7th Cir. Feb. 5, 2021), available at the Seventh Circuit and Westlaw.
The Eleventh Circuit Held that a Pro Se Motion by a Represented Party Could Delay the Running of the Appeal Clock
In Ruiz v. Wing, the Eleventh Circuit held that a pro se motion for a new trial delays the start of the appeal clock, even if the party was represented by counsel and the motion was accordingly struck.
Ruiz involved excessive force claims against two police officers. Although the plaintiff filed the complaint pro se, he obtained pro bono counsel before trial began. At that trial, the jury found for the police officers. Shortly thereafter, the plaintiff filed a pro se motion for a new trial under Federal Rule of Civil Procedure 59. A month later, the district court struck the motion as an unauthorized pro se filing by a represented party. Finally, a week after the district court struck the motion, the plaintiff filed a notice of appeal.
The defendants in Ruiz argued that the appeal was untimely. The plaintiff had 30 days to file his appeal. Those 30 days normally run from the entry of the final judgment. But Rule 4(a)(4) delays the start of the appeal window if a party files certain post-judgment motions, such as a Rule 59 motion for a new trial. When such a motion is filed, the time to appeal runs from the district court’s decision disposing of the motion. The defendants argued, however, that the unauthorized pro se motion in Ruiz did not delay the start of the appeal clock.
The Eleventh Circuit disagreed. All Rule 4(a)(4) requires is the timely filing of one of the motions that the rule specifies. There’s no requirement that the motion be meritorious. The rule also states that the time to appeal runs from the district court’s order “disposing of” the post-judgment motion. The district court struck the motion, thereby finally resolving—that is, “disposing of”—it. That the motion was struck because it was an unauthorized pro se motion was of no consequence. And since the time to appeal ran from the district court’s striking the motion, the notice of appeal filed a week later was timely.
Ruiz v. Wing, 2021 WL 382071 (11th Cir. Feb. 4, 2021), available at the Eleventh Circuit and Westlaw.
The Third Circuit on Relating Forward Notices of Appeal
Litigants normally file their notice of appeal after the district court enters a final, appealable decision. But sometimes they file too early, before the district court has entered a judgment or other appealable decision. Problems can then arise if these litigants do not file a second notice (or amend their first). No proper notice has been filed. And parties that do not file a proper notice forfeit their right to appellate review.
To address this problem, courts and rulemakers developed the cumulative-finality doctrine, which allows premature notices to relate forward to the subsequent entry of a final, appealable decision. The doctrine is a bit of a mess. But most courts hold that a notice filed after a dismissal without prejudice—such as a dismissal with leave to amend a complaint—becomes effective once the dismissal becomes final.
The Third Circuit addressed two variations on this general rule. In Lloyd v. New Jersey Housing & Mortgage Finance Agency, the Third Circuit held that a notice of appeal was still effective when the court of appeals had issued a limited remand for the district court to enter a final order of dismissal. The district court in Lloyd initially dismissed the plaintiff’s complaint without prejudice. The plaintiff then appealed. But, apparently concerned over the finality of a dismissal without prejudice, the Third Circuit remanded the case for the district court to enter an order dismissing the case with prejudice. The plaintiff did not file a new notice of appeal. The Third Circuit nevertheless said that it had jurisdiction. The earlier notice of appeal—which predated the limited remand and the entry of the dismissal with prejudice—related forward to the district court’s final decision.
And in Auriemma v. Bloomfield Municipal Court, the Third Circuit held that a notice of appeal—which itself made the district court’s decision final—related forward to that final decision. The district court in Auriemma had dismissed the complaint with leave to amend. Before the time to amend expired, the plaintiff filed a notice of appeal. That, the Third Circuit said, showed an intent to stand on the original complaint, which made the dismissal final. And while that notice of appeal was technically early—its filing caused the dismissal to become final—it related forward to the final dismissal.
Lloyd v. New Jersey Housing & Mortgage Finance Agency, 2021 WL 387473 (3d Cir. Feb. 3, 2021), available at the Third Circuit and Westlaw.
Auriemma v. Bloomfield Municipal Court, 2021 WL 397647 (3d Cir. Feb. 4, 2021), available at the Third Circuit and Westlaw.
The Eleventh Circuit on Designating a Final Judgment
Finally, in Donnelly v. Wal-Mart Stores East, LP, the Eleventh Circuit held that a notice of appeal was sufficient to appeal an order denying leave to amend, even though that order was not designated in the notice of appeal. Donnelly involved a slip-and-fall claim, and the district court denied the plaintiff leave to amend her complaint to add a separate negligence theory involving the flooring used in the store. The district court later granted the store summary judgment, and the plaintiff appealed. The plaintiff’s notice of appeal designated only the district court’s final judgment. The store argued that failing to designate the order denying leave to amend meant the Eleventh Circuit had no jurisdiction over the order. But the Eleventh Circuit rejected this argument. A notice that designates a final judgment—and does not specify any portion of that judgment—encompasses all interlocutory orders that merged into that final judgment.
Donnelly v. Wal-Mart Stores East, LP, 2021 WL 371464 (11th Cir. Feb. 3, 2021), available at the Eleventh Circuit and Westlaw.