In Legg v. Ulster Cnty., No. 17-2861 (2d Cir. Oct. 29, 2020), a Title VII and § 1983 sex harassment case, the Second Circuit holds that even though the district court improperly gave defendants an extension on their deadline to file post-judgment motions, the non-movant forfeited any objection by not raising the issue at the time the extension was granted. The panel thus creates a split with the Eighth Circuit.
A plaintiff (Watson) prevailed on her claims that she was subjected to a hostile work environment at a county jailhouse. The harassment included a barrage of pornography, “sexual comments and banter, inappropriate touching, and … male officers’ practice of making “references to my butt [and] references to my chest and what they would like to do sexually.” A jury awarded Watson $400,000 on her claims.
The defendants moved for judgment as a matter of law and for a new trial. Rules 50(b) and 59(b) set deadlines for the filing of post-trial motions at 28 days after entry of judgment. Rule 6(b)(2), meanwhile, provides that the district court “must not extend the time to act under Rules 50(b) and . . . 59(b) . . . .” In this case, though, “[i]n reliance on the district court’s invitation to file its post-trial motions two weeks after receiving trial transcripts, the County filed motions for judgment as a matter of law or, alternatively, for a new trial, under Fed. R. Civ. P. 50(b) and 59(b)” well beyond the 28-day window. The district court, cottoning to its error, sua sponte dismissed the motions as untimely.
On the first appeal of the case, Legg v. Ulster Cnty., 820 F.3d 67 (2d Cir. 2016), the panel remanded the case for the district court to reconsider the post-judgment motions. Because the 28-day filing periods under Rules 50 and 59 were held to be merely “claims-processing” rules, and not jurisdictional, the district court was directed to consider on remand whether the late-filing should be excused on waiver or equitable grounds. The district court on remand held that plaintiff Watson “constructively waived” her objection to the untimeliness of the County’s motions by not raising it when the motions were first filed and denied. It then went on to the merits, ordering remittitur on the Title VII damages to $75,000 and granting judgment as a matter of law on the § 1983 claim.
The Second Circuit, though substantially affirming the judgment and even reinstating a § 1983 verdict, holds that the plaintiff’s objection to the timing of the post-trial motions came too late. “While time limitations in claim-processing rules have been called ‘inflexible’ and ‘unalterable on a party’s application,’ objections to noncompliance can ‘nonetheless be forfeited if the party asserting the rule waits too long to raise the point.’” The panel summarizes that this case “requires us to decide whether the nonmoving party forfeits a timeliness objection by failing to object to the district court’s grant of an extension that is not permitted by the Federal Rules of Civil Procedure.”
“A district court may, on occasion, inadvertently rule in such a way as to extend a deadline to file a post-trial motion under Rules 50(b) and 59(b) past the 28-day mark despite the prohibition in Rule 6(b)(2). When a district court grants such an extension and a party has an opportunity to object contemporaneously with the extension’s grant, a party forfeits any objection to the timeliness of the motions by failing to do so at the time.”
In so holding, the panel acknowledges a split with the Eighth Circuit, which in Dill v. General American Life Ins. Co., 525 F.3d 612 (8th Cir. 2008), held that “although the plaintiff had failed to object to the motion for extension of time until ‘it was too late for [defendant] to take any corrective action,’ the objection was nonetheless timely and not forfeited because it came before the district court’s decision on the merits.” The panel observes that such a rule could lead to ambush: a party that knew the rule could “choose … to withhold objection until the untimely merits motion is filed,” then “through strategic silence” could achieve the same result “with shades of unfairness both to the moving party and to the court, of defeating a potentially meritorious substantive motion.”
Here, the panel notes, “[h]ad Watson objected at the time, she would have triggered claim-processing Rule 6(b)(2), requiring her own timely filing and timely filing by the County of their post-trial motions. Watson not only failed to object then; rather, she agreed generally to the proposed extension.” She thus forfeited her right to object.