The Fifth Circuit used Rule 83 to hold that a struck post-judgment motion reset the start of the appeal clock. But it would have been easier to say that striking a post-judgment motion is still “disposing of” that motion under Rule 4(a)(4).
December 6, 2021
After a district court enters its final judgment, civil litigants normally have 30 days to file their notice of appeal. But certain events—including the timely filing of certain post-judgment motions—can reset the appeal clock. When a litigant timely files one of these motions, the time to appeal runs from the district court’s decision disposing of that motion. Normally that means an order granting or (more commonly) denying the motion. But what if the district court strikes the motion due to a procedural defect?
In Al-Qarqani v. Saudi Arabian Oil Co., the Fifth Circuit held that an order striking a timely post-judgment motion resets the appeal clock just as much as an order granting or denying that motion. To hold otherwise—as the Tenth Circuit and some unpublished Fifth Circuit decisions have held—would violate Federal Rule of Civil Procedure 83(a)(2)’s prohibition on parties’ losing rights due to violations of rules of form.
But things could have been simpler. Under Federal Rule of Appellate Procedure 4(a)(4), the time to appeal runs from the district court’s decision “disposing of” the last post-judgment motion. An order striking a motion disposes of that motion and thus should be enough to reset the appeal clock. A contrary rule would require litigants to file protective notices of appeal alongside their post-judgment motions, just in case the district court ends up striking those motions.
The Al-Qarqani Litigation
Al-Qarqani involved efforts to enforce an arbitral award against the Saudi Arabian Oil Company (better known as Saudi Aramco). The district court denied the petition for enforcement. Four weeks later, the plaintiffs sought reconsideration under Federal Rule of Civil Procedure 59. About one week after that, the district court struck the motion for reconsideration due to the plaintiffs’ noncompliance with some local rules. (The plaintiffs had not included a certificate stating that they had concurred with opposing counsel, nor had they included a proposed order with their motion.) Twenty-nine days later after the order striking their Rule 59 motion, the plaintiffs filed their notice of appeal.
Saudi Aramco sought to dismiss the appeal as untimely. It argued that the district court’s decision striking the post-judgment motion rendered that motion a nullity. And with no post-judgment motion to reset the start of the appeal clock, the time to appeal expired 30 days after the district court’s initial decision.
Rule 83 & Struck Motions
The Fifth Circuit held that the time to appeal ran from the order striking the post-judgment motion. The court noted that some of its unpublished decisions had held that struck motions for reconsideration did not affect the appeal window. The Tenth Circuit has reached the same conclusion. But those decisions, the Al-Qarqani court noted, ignored amendments to Rule 83(a). Rule 83(a)(2) now provides that “[a] local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply.” And the local rules that led to the striking of the post-judgment motion in Al-Qarqani were rules of form. Allowing violations of those local rules to affect the appeal timing, the Fifth Circuit concluded, would violate Rule 83.
A Simpler Alternative
Note, the Fifth Circuit could have reached the same decision more easily. Federal Rule of Appellate Procedure 4(a)(4)—which governs resetting the appeal clock—says that the time to appeal runs from “the entry of the order disposing of the last” post-judgment motion. Striking a motion is just as much an order disposing of a motion as is granting or denying it.
The Eleventh Circuit accordingly held in Ruiz v. Wing that a struck post-judgment motion—struck because it was an unauthorized pro se filing by a represented party—restarts the appeal clock. The court noted that “nothing in Rule 4(a)(4) conditions the tolling of time to file a notice of appeal on a merits denial of the relevant motion.” The Seventh Circuit has also held as much, noting that any contrary rule “would create troublesome uncertainty about when a notice of appeal must be filed and would invite sterile litigation over when unsuccessful motions to reconsider were too weak to toll the time to appeal.” Indeed, holding that a struck motion does not restart the appeal clock would encourage litigants to file a protective notice of appeal alongside their post-judgment motions, lest they risk the court later treating the post-judgment motion as a nullity for appeal-timing purposes.
Al-Qarqani v. Saudi Arabian Oil Co., 2021 WL 5711555 (5th Cir. Dec. 2, 2021), available at the Fifth Circuit and Westlaw.