On September 16, 2015, the US Court of Appeals for the Second Circuit held in Weitzner v. Cynosure, Inc. that the 28-day time limit for filing a motion for reconsideration to toll the time for filing a notice of appeal under FRAP 4(a)(4)(A)(vi) allows equitable exceptions (No. 14-723-cv, (2d Cir. Sept. 16, 2015).

The plaintiffs commenced an action against the defendants in the US District Court for the Eastern District of New York, alleging violations of the Telephone Consumer Protection Act (TCPA). The district court dismissed the suit as claim-precluded and issue-precluded because the plaintiffs had previously filed a similar action against the same defendant in Massachusetts state court. The district court entered judgment on March 5, 2013. Ten days later, the plaintiffs served a motion for reconsideration of the judgment under FRCP 60(b) on the defendant and sent the court a letter notifying it of the motion. The plaintiffs did not file the motion with the court at that time because the district judge had an individual rule prohibiting litigants from filing a motion until the motion is fully briefed and ready for adjudication. Under the rule, the moving party must serve the motion on the adversary and advise the court by letter that the motion is served.

The district court met with counsel and issued a scheduling order governing submission of the motion. The March 21, 2013 order required that:

The defendant timely served its opposition, but the plaintiffs did not serve their reply until August 14, 2013, when the plaintiffs finally filed the fully-briefed motion for reconsideration with the district court. The district court denied the motion for reconsideration on February 6, 2014. Less than thirty days later, the plaintiffs filed a notice of appeal from the March 5, 2013 judgment.

The defendant argued that the appeal was untimely because it was filed outside the 30-day time limit imposed under FRAP 4(a)(1)(A). An appellant can toll the 30-day time limit by filing a motion for reconsideration "no later than 28 days after the judgment is entered" (FRAP 4(a)(4)(A)(vi)). The defendant contended that tolling was not possible in this case because, although they served their motion for reconsideration on the defendant, the plaintiffs did not file their motion until more than five months after the entry of judgment.

The Second Circuit held, as a matter of first impression, that for the purposes of tolling FRAP 4(a)(1)(A)'s time limit for the filing of a notice of appeal, the filing of a motion for reconsideration outside the 28-day limit could be equitably excused because it is a "claim-processing" rule under the terminology adopted by the US Supreme Court in Bowles v. Russell (551 U.S. 205, 213 (2007)). Claim-processing rules are not laid out in statutes and violations may be subject to equitable exception and waiver. On the other hand, "jurisdictional" rules, such as the 30-day period for filing a notice of appeal under FRAP 4(a)(1)(A) are imposed by statute and are not subject to equitable exception and waiver.

The Second Circuit then ruled that the plaintiffs in this case did not qualify for an exception. Although the plaintiffs would likely have filed their motion on time in absence of the judge's rule requiring motions to be filed when fully briefed, the plaintiffs did have several opportunities to ask leave of the court to file the motion and failed to do so. For example, the plaintiffs could have requested permission to file the motion earlier either in their letter advising the court of the motion or at the scheduling conference. Instead, the plaintiffs consented to a scheduling order under which the motion for reconsideration would be filed outside the 28-day period. Moreover, the plaintiffs also delayed their briefing and filing until several months after the date specified in the scheduling order. As a result, the Second Circuit dismissed the plaintiffs' appeal.

According to the Second Circuit, an individual judge's rule prohibiting the filing of a motion until after the completion of briefing is of "doubtful consistency" with the reasonable time requirements of FRCP 5(d)(1). Additionally, such rules can cause litigants to lose important litigating rights. Therefore, the court recommended that the district courts promptly review their individual rules and practices to eliminate rules that could cause conflicts with the federal rules of procedure.

Counsel practicing in the Second Circuit should always file a motion for reconsideration within 28-days of judgment. If the judge's individual rules require the motion to be filed outside the time limit, counsel should seek permission to file the motion earlier.