Serving, Filing, and Equitable Exceptions to Rule 4(a)(4)

In Malek v. Feigenbaum, the Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the time to appeal under Federal Rule of Appellate Procedure 4(a)(4). The court went on to hold that although Rule 4 is a claims-processing rule, it is a mandatory one that is not subject to equitable exceptions. The Second Circuit ended by concluding that a notice of appeal that designated the district court’s final judgment did not permit an appeal from a subsequent denial of reconsideration, even though that notice came after the denial.

The Rule 59(e) Motion in Malek

Simplifying only a little bit, the district court in Malek dismissed the action for failure to state a claim. The plaintiff then decided to seek reconsideration of that decision under Federal Rule of Civil Procedure 59(e). Reconsideration motions must be filed within 28 days of entry of judgment. But the district court judge’s chambers rules generally required waiting to file any motions until they are fully briefed. So rather than file the Rule 59(e) motion within the required 28 days, the plaintiff only served it on the opposing party.

(Side note: the judge’s chambers rule also said that this general rule on waiting to file motions did not apply if “doing so might cause a party to miss an applicable deadline.” And those rules “remind[ed]” litigants that “the Court of Appeals will not accept an argument that compliance with district court motion rules should excuse noncompliance with the time limits set forth in Fed. R. App. 4.”)

The parties fully briefed the motion, after which the plaintiff filed it with the district court. That filing came 35 days after the entry of judgment. The district court eventually denied the reconsideration motion. The plaintiff then filed an a notice of appeal within 30 days of that denial.

Service, Filing & Timeliness

The plaintiff’s notice came more than 30 days after the entry of judgment. So for the appeal to be timely, the plaintiff’s Rule 59(e) motion needed to reset the appeal deadline. The Second Circuit held that it didn’t.

Federal Rule of Appellate Procedure 4(a)(4) provides that certain post-judgment motions reset the time to appeal—rather than running from the entry of the judgment, the appeal clock runs from the order disposing of the last post-judgment motion. But for Rule 4(a)(4) to apply, the post-judgment motion must be filed within the time permitted by the rules. And, again, a Rule 59(e) motion must be filed within 28 days of entry of the judgment.

The plaintiff contended that his Rule 59(e) motion was timely because he had served it on the opposing party within the required 28 days. But the Second Circuit held in Weitzner v. Cynosure that timely filing of the motion—not service of it—is necessary to reset the appeal clock. That was so even if local or chambers rules normally require delaying the filing of such a motion until after full briefing.

The Second Circuit went on to hold that the 2016 amendments to Rule 4(a)(4) did not abrogate Weitzner. Those amendments addressed a circuit split as to whether an opposing party’s failure to object to an untimely post-judgment motion permitted an untimely motion to reset the appeal clock. Under the amended rule, failure to object does not change the untimeliness of the motion for purposes of Rule 4(a)(4). The amended rule thus supported the holding in Weitzner, as Rule 4(a)(4) still requires filing—not service—within the time permitted by the pertinent rule.

Rule 4(a)(4) & Mandatory Claims-Processing Rules

The Second Circuit then explained that Rule 4(a)(4), though a claims-processing rule, is nevertheless mandatory and thus not subject to equitable exceptions.

The rule does not implement a statutory deadline, so it is not jurisdictional. That means defendants can waive or forfeit Rule 4(a)(4).

But under Nutraceutical Corp. v. Lambert, the rule is still mandatory. Like Federal Rule of Civil Procedure 23(f) (which the Supreme Court addressed in Nutraceutical), Rule 4(a)(4) is “phrased in an unqualified manner.” Federal Rule of Appellate Procedure 26(b) prohibits extending the time to file a notice of appeal. And Rule 4(a)(4) already has built in “tolling” rules, meaning that equitable tolling is inappropriate.

The Designated Order

The Second Circuit ended by concluding that the plaintiff’s notice of appeal—which was filed within 30 days of the district court’s denial of his Rule 59(e) motion—did not permit an appeal from that denial. The notice designated only the dismissal of the action as the appealed order. And the notice could not be construed to include the order denying reconsideration.

Designating Final Judgments & Post-Judgment Orders

I’ve been thinking about this last point. The recent amendments to Federal Rule of Appellate Procedure 3 were supposed to abrogate the practice of using the notice-designation requirement to limit the scope of appeal. But that’s precisely what the Second Circuit did here.

The twist is that the would-be appellant designated an order that adjudicated all remaining claims but then tried to appeal the denial of a subsequent Rule 59(e) motion. (Note, the notice of appeal was filed after the district court denied that motion, so there was no problem under Rule 4(a)(4)(B)(ii).) I have not yet thought about whether a post-judgment motion merges (reverse merges?) into a final judgment. But I don’t think there’s any reason to hold that designating the final judgment does not then permit review of a Rule 59(e) denial. The defendants almost certainly had notice that the plaintiff wanted to appeal that denial. And I can’t see any prejudice to the court or the parties from including it within the scope of appeal.

So while I think the Second Circuit was right in holding that the notice of appeal was untimely as to the dismissal, I think that the notice was timely as to—and effective to appeal—Rule 59(e) denial.

Malek v. Feigenbaum, 2024 WL 4138389 (2d Cir. Sep. 11, 2024), available at CourtListener and Westlaw