Appeals courts routinely dismiss cases for lack of appellate jurisdiction when the appellant files an untimely notice of appeal. Sometimes, however, a party's late filing is due to what litigants may believe are circumstances beyond their control. In two recent cases, the US Court of Appeals for the Second Circuit held litigants accountable for notices filed late due to a judge's individual bundling rule and an attorney's misstep in the e-filing process. These cases underscore the critical importance of strictly complying with deadlines in the Federal Rules of Appellate Procedure (FRAP) and the court's electronic filing rules.

A bundling rule is an individual judge's rule that prohibits a litigant from filing a motion until the motion is fully briefed and ready for adjudication.

In Weitzner v. Cynosure, Inc., the Second Circuit explicitly warned litigants and district court judges of the dangers of bundling rules (802 F.3d 307 (2d Cir. 2015)). The district court had dismissed the plaintiffs' Telephone Consumer Protection Act (TCPA) case in March 2013 on the grounds of claim and issue preclusion. Plaintiffs timely served the defendant with a motion for reconsideration of the judgment under Federal Rule of Civil Procedure (FRCP) 60(b). However, under the district court judge's bundling rule, the plaintiffs did not file their Rule 60(b) motion papers with the court until August 2013 when the motion was fully briefed. In February 2014, the district court denied the plaintiffs' Rule 60(b) motion on the merits. Within 30 days of that denial, the plaintiffs filed a notice of appeal from the March 2013 judgment.

The Second Circuit deemed the plaintiffs' notice of appeal untimely and dismissed the case for lack of appellate jurisdiction. The court acknowledged that when a party files a FRCP 60(b) motion within 28 days of judgment, the time to file an appeal is tolled and runs from the entry of the order disposing of the motion (FRAP 4(a)(4)(A)(vi)). However, because the plaintiffs here filed their motion for reconsideration over five months after entry of judgment, the time for plaintiffs to appeal the district court's dismissal was not tolled. As a result, the plaintiffs' notice of appeal of the March 2013 judgment was filed long past the 30-day deadline in FRAP 4(a)(1)(A).

In dismissing the case, the Second Circuit:

In Franklin v. McHugh, the plaintiff, a retired Lieutenant Colonel in the US Army Reserve, sued the Secretary of the US Army seeking correction of his military records, a retroactive promotion, and back pay ( (2d Cir. Oct. 30, 2015)). The district court for the Eastern District of New York granted the Secretary's motion to dismiss for lack of subject matter jurisdiction. The plaintiff had 60 days after entry of judgment to file a notice of appeal under FRAP 4(a)(1)(B).

Within 60 days of entry of judgment, plaintiff's counsel uploaded the notice of appeal and related documents to the Eastern District's case management/electronic case filing (CM/ECF) system, paid the filing fee, and received a payment receipt. However, one day after the 60 days had expired, plaintiff's counsel learned that the docket sheet did not reflect his filing of the notice of appeal. The clerk's office instructed counsel to refile the documents and pay the fee again, and told him that the date on the original receipt for payment of the filing fee would govern when the notice of appeal was actually filed.

Despite these circumstances and the alleged representations by the clerk's office, the Second Circuit dismissed the case as untimely, finding that:

Practical Law has resources to help litigants avoid the problems that arose in these cases, including: