Timely Notice of Appeal

The Fifth Circuit entered an opinion last week about filing deadlines for appeals. When you think of the time to appeal, you probably instinctively recall that you have thirty days from entry of judgment. The Fifth Circuit’s opinion, however, points out that 2002 amendments to FRCP 58 and FRAP 4 include a 150 day rule that you need to remember.
This was the time line, as set out by the Fifth:
• February 2: Jury verdict; clerk’s entry of judgment; no court approval.
• February 10: Plaintiff moved for attorney’s fees under FRCP 54(d)(2).
• July 2: 150 days elapsed after clerk’s entry of judgment on the verdict.
• September 16: Plaintiff’s fee motion granted.
• October 18: Defendant filed, and court granted, FRCP 58(c) (2) motion to treat fee motion as FRCP 59 new trial motion to delay running of time to appeal.
• October 18: Court approved the form of the judgment on the merits entered by the clerk on February 2, 2004.
• October 18: Defendant filed notice of appeal.
Here is part of the Fifth Circuit’s reasoning:
FRCP 58 and FRAP 4 establish the ‘entry of judgment’ by the district court as the triggering event for the beginning of tolling periods for the filing of notices of appeals and post-judgment motions. Under FRCP 58, in the case of specified, uncomplicated orders, verdicts and judgments, judgment is deemed entered by the court when the clerk makes an entry of it under FRCP 79(a) showing its nature and substance in the civil docket. .. . In the case of certain more complicated verdicts and other grants of relief, judgment is deemed entered by the court when the earlier of two events occurs: (1) when it is set forth on a separate document approved by the court and entered under FRCP 79(a); or (2) when 150 days have run from the clerk’s entry of its nature and substance under Rule 79(a).
Applying this analysis, the Fifth held that the notice of appeal was untimely:
Although the court did not perform its duty to promptly approve a separate document judgment, the clerk had independent authority and a duty to enter the judgment based on the verdict in the civil docket. When 150 days passed after February 2, 2004 without the filing of a separate document judgment the judgment prepared and entered by the clerk by law was entered as the judgment of the court on the merits on July 2, 2004. Because the City did not file its notice of appeal until October 18, 2004, in excess of 30 days after the entry of the judgment, it failed to file a timely notice of appeal.
Read
here and remember.
Thanks to
Appellate Law and Practice for bringing this opinion to my attention!

Posted on 5:35 AM by susan