The Mortal Sin of the Late Notice of Appeal

Let’s face it:  Mistakes happen. 

Fortunately, as a wise mentor once told me, there are really only three things in the practice of law that you can’t fix: (1) missing a statute of limitations; (2) filing your lawsuit in the wrong jurisdiction (which is most problematic when you’re up against a statute of limitations); and (3) late filing of a notice of appeal.  And he was right.  For the most part, at least in my experience, courts and opposing counsel, are fairly understanding and forgiving.  Judges were lawyers once, too, and they well remember the pressures of practicing law.  And lawyers – particularly in our small Midwestern bar - are usually willing to extend a professional courtesy since they may soon find themselves in the same predicament, perhaps even with you as opposing counsel.  Rather than tolerate sloppy practice, these courtesies in many ways speed cases along to a resolution or a decision on their merits, which is in both parties’ best interests.

The Tenth Circuit, however, recently held a hard line on the deadline for filing a notice of appeal.  In Klein v. Kristine Olson, et al, Klein, as the receiver of an entity, filed an action challenging the validity of three assignments of beneficial interests that the entity issued to three named defendants.  On November 14, 2016, the district court granted summary judgment in Klein’s favor.  On December 8, 2016, before the time for filing the notice of appeal had expired, an employee of defendants’ counsel logged onto the district court’s electronic filing system, uploaded a notice of appeal document, and used a credit card to pay the appellate filing fee.  The uploaded notice of appeal document, however, was not docketed because the employee prematurely exited the electronic filing system before completing the final step in the online filing process.  On December 22, 2016, after the time for filing the notice of appeal had expired, defendants’ counsel learned that the notice of appeal had not been docketed and asked the employee who attempted to file the notice of appeal to call the district court clerk’s office.  She was told that the payment she had made had been recorded, but that there was no record of the notice of appeal having been filed.  The employee therefore again logged onto the district court’s electronic filing system and completed all the steps necessary for filing an appeal, resulting in a notice of appeal being docketed on December 22, 2016.  The Tenth Circuit directed the parties to brief and address whether the notice of appeal was timely filed.  After briefing and oral argument, the Tenth Circuit partially remanded the case to district court to conduct an evidentiary hearing and make factual findings regarding the filing of the notice of appeal.  After the evidentiary hearing, the district court issued written factual findings regarding the steps taken to timely file the notice of appeal.

The Tenth Circuit ultimately held that it lacked jurisdiction over the appeal.  First, the Tenth Circuit emphasized “that the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’”  Klein, --- F.3d --- (quoting Bowles v. Russell, 551 U.S. 205, 209 (2007)).  It concluded that allowing the late filing of the notice of appeal “would turn the district court’s clear and unequivocal electronic filing rules into mere suggestions, and would effectively allow a pleading to be ‘filed’ without the pleading being docketed and, in turn, without the district court’s clerk or the opposing party knowing about it.”  Finally, the Tenth Circuit found that defendants’ counsel’s “attempted curative measure” of filing the notice of appeal on December 22, 2016, undercut its arguments.  This action neither extended the time for filing of the notice of appeal nor rendered the notice of appeal timely.  As the Tenth Circuit observed, “the proper course would have been for defendants’ counsel to file with the district court a motion for extension of time . . . .  That rule allows a district court to ‘extend the time to file a notice of appeal if . . . a party so moves no later than 30 days after the time prescribed by Rule 4(a) expires’” and the moving party “shows excusable neglect or good cause.”  Unfortunately, that step was never taken, the defendants did not file a timely notice of appeal, and the Tenth Circuit dismissed the appeal for lack of jurisdiction.

Federal courts may allow that limited fix, but South Dakota courts do not.  The South Dakota Rules of Appellate Procedure allow for the extension of many appellate deadlines, but no extension is permitted for the deadline to file a notice of appeal.  See SDCL 15-26A-92 (“The Supreme Court for good cause shown may upon motion enlarge or extend the time prescribed by this chapter for doing any act or may permit an act to be done after the expiration of such time; but the Supreme Court may not enlarge the time for filing or serving a notice of appeal.”).  An amended notice of appeal is allowed but only to correct clerical errors.  SDCL 15-26-4.1.  (Similarly, a notice of appeal must be served on all interested parties, and failure to do so is fatal to the appeal.  See In re Reese Trust, 2009 SD 111, 776 N.W.2d 832 (holding that failure to serve party-defendant with notice of appeal was fatal to appeal and required dismissal).)  Thus, while late filing of a notice of appeal may be fixed under Federal Rules of Civil Procedure, it is one of the few mortal sins in the practice of law under the South Dakota Rules of Appellate Procedure.

What practical steps can you take to ensure that you do not commit that sin?  First, and most obvious, know the appellate deadlines in the jurisdictions in which practice very well.  If you don’t know the deadlines, or have any doubt about them, call a local appellate practitioner or the clerk of your appellate court.  At least in South Dakota, you will find the South Dakota Supreme Court’s clerk’s office to be incredibly helpful.  Second, I highly recommend filing your notice of appeal early to allow plenty of time to correct mistakes.  Once the notice of appeal has been filed, you or your paralegal should take steps to confirm that it has in fact been filed and received by the clerk’s office.  And finally, if you do file a late notice of appeal, and if the applicable rules allow it, bring your motion to extend time for the filing of the notice of appeal, likely in addition to taking the “attempted curative measures” that the Tenth Circuit found unavailing.

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