Sixth Circuit Holds That Notice of Appeal Was Timely Filed When It Was Deposited in the Court Drop Box

In Pierce v. Ocwen Loan Servg., LLC, No. 20-6057 (6th Cir. Feb. 4, 2021), a motion panel denies a motion to dismiss an appeal on limitations grounds, holding that the lawyer dropping the paper notice of appeal in the district court’s drop box constituted filing for purposes of Fed. R. App. P. 4.

“Homeowners Gerald and Kathleen Pierce sued Ocwen Loan Servicing and Deutsche Bank National Trust Company to prevent them from foreclosing on their home. The district court granted summary judgment to Ocwen and Deutsche Bank. The Pierces appealed.” But the banks moved to dismiss, holding that the notice of appeal was timely filed.

The timeline was as follows: The district court entered summary judgment on April 13, 2020. The Pierces timely filed a motion to alter the judgment under Fed. R. Civ. P. 59, which restarts the appeal clock. The district court denied the motion on August 12. “At that point, the Pierces had 30 days—through Friday, September 11—to file their notice of appeal. Fed. R. App. P. 4(a)(1)(A), 4(a)(4)(A)(iv); see 28 U.S.C. § 2107(a). Sometime before 5 p.m. on that final day, the Pierces’ lawyer placed a paper notice of appeal and a cashier’s check for the filing fee into the drop box provided by the court. The weekend passed.”

“On Monday morning, the clerk emailed counsel, informing him that local rules required electronic filing and that the clerk would return the notice by regular mail. The court kept the cashier’s check. Counsel filed an electronic notice of appeal that day, Monday.”

The banks argued on appeal that because the local rules mandated electric filing, the paper filing was a nullity and the second, conforming notice of appeal came too late. But the Sixth Circuit holds not. Significantly, “In response [to the motion to dismiss], the Pierces presented an affidavit from their attorney, explaining that he deposited the notice of appeal in the clerk’s drop box on Friday, September 11. The lenders did ‘not contest’ counsel’s sworn statements.”

Thus the question was whether a notice of appeal filed out of compliance with the local rules counted. Under the Federal Rules of Civil Procedure, a “party ‘file[s]’ a notice of appeal on the date she ‘deliver[s] it . . . to the clerk’ of court.” Fed. R. Civ. P. 5(d)(2). And courts have held repeatedly that placing the notice of appeal in a court’s “drop box designated for court documents suffices” under that rule.

Also, notably, the district court kept the cashier’s check. “The Pierces put their money where their paper filing went. Included in the drop box were the notice of appeal and a cashier’s check to pay for the filing fee. That the clerk of court kept the check, but not the notice of appeal, is hard to fathom. Even Ayn Rand might pause at this manifestation of the limits of self (or institutional) interest.”

That the local rules required electronic filing does not change the outcome. Imperfections in filing do not affect appellate jurisdiction if the notice otherwise conforms to the rule. “The failure to comply (initially) with local rules customarily does not render the filing of a document untimely.” Moreover, local rules may not overrule national standards. “The failure to comply (initially) with local rules customarily does not render the filing of a document untimely …. The power to enact local rules [under Fed. R. Civ. P. 83(a)(2)], generally speaking, does not include the power to deny appellate jurisdiction.”

The court concludes: “It is true that the Pierces’ lawyer had other options. He could have asked for an extension of time in the district court. 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5). He could have notified opposing counsel that he had placed the notice of appeal in the drop box. But best practices do not set jurisdictional bounds; Congress does.”

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