How Trial Judges’ Personal Motion Filing Procedures Can Ruin Your Appeal

Many trial judges, particularly federal district court judges, have special rules governing the procedure for filing motions in cases on their dockets. If a lawyer is not careful, those special rules can result in the dismissal of an appeal as untimely, as the Second Circuit recently explained in its opinion in Weitzner, et al. v. Cynosure, Inc. (Hat Tip to Orrick appellate lawyer (and my cousin by marriage) Bob Loeb.)

Here’s the potential problem with special motion filing rules. Initially, under federal law (and state law in many jurisdictions too), the time period within which an appeal must be filed is jurisdictional.  If an appeal is filed outside of that time period, the appellant is almost always out of luck.  However, some post-judgment filings toll the time period for filing an appeal. For example, a timely-filed motion for reconsideration under FRAP 60 tolls the appeal period while the motion is pending. So far, so good. But here comes the curve ball.

Some trial judges have adopted their own rules that prohibit the filing of a motion with the court until the entire “package” of relevant materials, including the opposing party’s opposition memorandum and the moving party’s reply are completed, at which time the entire set of briefs is filed simultaneously.  A party moving for reconsideration before such a judge may be lulled into believing that the service of the motion upon the other party within the requisite time period for such motions (say, 28 days) tolls the appeal period.  However, when the trial court denies the motion and the aggrieved party files an appeal of the original judgment, that party will find her appeal dismissed as untimely because she did not actually file her motion for reconsideration with the court during the relevant time period under the federal rules. The unhappy lawyer can kick and scream that she should not be penalized for following the trial judge’s motion-filing procedures, but that sound and fury will fall on deaf appellate ears.

The Second Circuit had the following to say about this conundrum:

An individual judge’s rule prohibiting the filing of a motion until the completion of briefing seems of doubtful consistency with the requirement of Fed. R. Civ. P. 5(d)(1) that “[a]ny paper after the complaint that is required to be served . . . must be filed within a reasonable time after service.” See also Fed. R. Civ. P. 83(b) (judge may “regulate practice in any manner consistent with federal law” (emphasis added)). Furthermore, because important litigating rights can be forfeited by the failure to file a motion within a specified number of days, it seems clear that a judge’s adoption of a rule that prohibits reasonably prompt filing runs the risk of causing litigants to lose important litigating rights, including the right to seek on appeal to overturn an erroneous judgment.

Fifteen years ago in Camacho v. City of Yonkers, we noted that a judge’s individual rule requiring litigants to delay the filing of a motion (in that case the rule required delaying the filing until after a conference with the court) was likely to “serve as a snare for the unwary litigant.” 236 F.3d 112, 113 (2d Cir. 2000). We urged district courts to modify such rules “so they do not lead the unwitting to believe they have preserved a right to appeal when in fact they have not.” Id. at 117. In spite of that exhortation, we have found in studying this forfeited appeal that numerous district judges in this circuit continued to publish individual rules that prohibit the filing of a motion, either until after a conference with the court, or until completion of briefing on the motion. It is a virtual certainty that such rules will continue, on occasion, to cause litigants to forfeit important rights in the good-faith, but erroneous, belief that they cannot be held to have defaulted for failure to file a motion when they are commanded by the judge not to file the motion.

While it is true that in many cases counsel will have the opportunity, as in this case, to ask the judge’s leave to file without delay, a judge is not always available to deal promptly with an emergency application. Nor is there a guarantee that all judges will reasonably grant an exception from compliance with their rules. Litigants should not be put in the position of risking to be held in contempt for violation of the court’s rules – simply for filing with the court a paper whose filing is not only permitted, but also required, by the federal rules.

We have no doubt that the purpose of such individual calendar rules is to assist district courts in dealing with significant administrative burdens. Nonetheless, we are confident that the useful objectives of such rules could be achieved in a manner that would avoid these unacceptable pitfalls. We very strongly recommend that district courts promptly review their individual rules and practices so as to eliminate the unacceptable risk that litigants will forfeit rights because of observance of rules promulgated by individual judges, especially with regard to rules that are of questionable consistency with the governing provisions of the federal rules and statutes.



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