On June 19, 2015, in In re: GNC Corp., the US Court of Appeals for the Fourth Circuit held that it lacked appellate jurisdiction over a FRCP 60(b)(1) motion denial because the appellant failed to file a separate notice of appeal (No. 14-1724, (4th Cir. June 19, 2015)).

A group of consumers sued GNC and Rite Aid under various state consumer protection laws, alleging false advertising of joint medication. They claimed that the health representations made on the packaging was false because the weight of the scientific evidence indicated that the active ingredients did not provide the promised health benefits. The US Judicial Panel on Multidistrict Litigation transferred these actions to the US District Court for the District of Maryland for pretrial proceedings, and plaintiffs' counsel filed a consolidated amended complaint. The defendants moved to dismiss under FRCP 12(b)(6), arguing that if there are some experts who support what the companies claim the products can do, the representations are not false and misleading under the state laws. The district court agreed and dismissed the complaint.

The plaintiffs filed a timely notice of appeal. After that filing, arguing that the district court's initial order rested on a mistake of law, they moved for reconsideration by the district court under FRCP 60(b)(1). The court denied the motion in a second order. While they did not file a second notice of appeal with respect to the order denying the motion for reconsideration, the plaintiffs argued that they had appealed both the initial and second orders through their first notice of appeal.

The Fourth Circuit held that it lacked appellate jurisdiction over the second order. Appellants who file a motion for reconsideration within 28 days of an entry of judgment may wait to file their notice of appeal until after the motion as been decided, because FRCP 60 motions toll the time for filing an appeal. If the appellants miss this 28 day deadline, they can still file a separate notice of appeal within 30 days of the challenged order (FRAP 4(a)(4)(A)(vi) & (B)).

Because they did not file their motion for reconsideration within 28 days of the court's first order, the plaintiffs should have amended their initial notice of appeal or filed a new notice of appeal addressing the second order within 30 days of the court's order dismissing their complaint. By failing to take advantage of the "generous tolling provisions" of the FRAP, the court determined, the plaintiffs could not appeal the second order.