In Malek v. Feigenbaum, No. 23-992 (2d Cir. Sept. 11, 2024), the Second Circuit dismisses an appeal filed belatedly under Fed. R. App. P. 4(a)(4)(A), and further holds under the intervening authority of Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019), negates prior circuit authority that might have recognized equitable exceptions to the 30-day deadline.
The timing question in this appeal turned on Rule 4’s language that the 30-day trigger for the deadline for filing a notice of appeal under Rule (a)(1)(A) is reset when a “party files in the district court” one of several enumerated post-judgment motions “within the time allowed by those rules” (emphasis added).
Here, the appealing party (the plaintiff) served a Fed. R. Civ. P. 59 motion on the other party 16 days after entry of the order dismissing the case. A “motion for a new trial must be filed no later than 28 days after the entry of judgment” (Rule 59(b), emphasis added). But observing the district court’s “Individual Practice Rule,” the plaintiff did not actually file the motion until it was fully briefed, 37 days after entry of judgment.
The judge’s Individual Practice Rule, a so-called “bundling’ rule, warned parties of the possible consequences for appeal:
“As a courtesy to the Court, the Court requests that the parties refrain from filing motion papers until the motion has been fully briefed, unless doing so might cause a party to miss an applicable deadline. . . . Parties are reminded 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. . . . If any party concludes in good faith that delaying the filing of a motion in order to comply with any aspect of these Individual Practice Rules will deprive the party of a substantive right, the party may file the motion within the time required by the Federal Rules of Civil, Criminal, and/or Appellate Procedure.”
[Ed. Note: The rule could adversely affect the substantive rights of a non-movant if the judge upholds the judgment but alters the relief, which would potentially give the non-movant an issue to appeal, though conceivably too late to file a notice of appeal. Such bundling rules are a trap for unwary parties, only benefit the judge by delaying the running of the six-month reporting rule, and probably ought not exist at all.]
With the 37 days run, it was facially already too late to file a notice of appeal, but the plaintiff did all the same. “On July 14, 2023, Defendants filed a motion to dismiss this appeal for lack of appellate jurisdiction, arguing that Malek failed to file a timely notice of appeal under Appellate Rule 4(a)(1)(A). More specifically, Defendants argue that because Malek did not timely file his motion for reconsideration, that motion did not toll the thirty-day deadline to file his notice of appeal under Appellate Rule 4(a)(4)(A).”
The Second Circuit dismisses the appeal. Previously, Weitzner v. Cynosure, Inc., 802 F.3d 307 (2d Cir. 2015), held that Rule 4(a)(4)(A) requires that a post-judgment motion be timely filed—not merely timely served—to reset the running of the 30 days for filing a notice of appeal. The panel holds that a 2016 amendment to Rule 4(a)(4)(A), that deleted the word “timely,” did not change the rule. If anything, “[t]he 2016 amendment clarifies that if a district court permits a party to file a post-judgment motion after the deadline allowed by the Civil Rules, that motion is still untimely for the purpose of Appellate Rule 4(a)(4)(A),” which is precisely what happened here.
The panel also observes that under the recent Supreme Court authority of Nutraceutical Corp. v. Lambert, the Supreme Court confirmed that Rule 4(a)(4)(A) is a mandatory claims-processing rule. So while it is not jurisdictional (meaning that it is subject to forfeiture or waiver), neither is it subject to equitable tolling, equitable estoppel, or any other good-cause exception. “In concluding that Appellate Rule 4(a)(4)(A)(iv) is mandatory, we recognize Weitzner’s contrary presumption [that equitable exceptions might apply] as abrogated.” Thus, that part of Weitzner is necessarily overruled.
Applying the correct standard, the notice of appeal was filed too late. “On April 14, 2023, Malek served Defendants with his motion for reconsideration of the district court’s March 29, 2023 order dismissing the complaint; but he did not file the motion until May 5, 2023. The motion was thus filed more than twenty-eight days after the March 29, 2023 order and the March 31, 2023 entry of judgment.”
Compliance with the judge’s own rules did not inoculate the plaintiff from this consequence. “The local rules do not supersede the requirements of the federal rules. See Fed. R. Civ. P. 83(a)(1) (‘A local rule must be consistent with . . . federal statutes and rules.’). Moreover, the district court’s individual rules explicitly warned that this Court would not accept such an argument to excuse an untimely notice of appeal.”
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