Notice of Appeal Untimely Where Attorneys Claimed That Notice Through Electronic Filing System Did Not Start Time for Appeal

by Jeffer Mangels Butler & Mitchell LLP
Contact

After trial and the denial of post-trial motions, AT&T Operations, Inc. ("AT&T") filed motion to extend the time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a). AT&T argued that the e-mail notice of electronic filings (NEF's) that defense counsel received did not provide them with "notice" that Defendants' substantive post-trial motions had been resolved. To make this argument, AT&T noted that the e-mail notifications defense counsel received only contained language regarding the district court's grant of their motions for leave to file sealed documents, but failed to mention the denial of their substantive post-trial motions, which was provided in the same orders. Nonetheless, the district court noted that AT&T did, however, receive e-mail notifications that the Court had entered an order on Plaintiff's bill of costs and had denied Defendants' motion for new trial and JMOL on invalidity which were not sealed pleadings.

AT&T also argued that the docket entries for the orders at issue were modified two days later to reflect the denial of the substantive post-trial motions, but no new electronic notices were sent by the district court's electronic case filing (ECF) system to reflect these amended docket entries. Accordingly, AT&T contended that based on the NEFs they received, counsel believed the motions for JMOL and new trial on damages and non-infringement had not been disposed of and remained pending before the Court. As a result, AT&T claimed that it "did not receive sufficient notice of the substance of the orders entered justifies reopening the time to file an appeal."

The district court disagreed finding that the defense counsel should have known better. "The Court finds it is not sufficient for attorneys to rely on the electronic and e-mail notifications received from the ECF system, as the docket entries and notifications do not always convey the Court's disposition in its entirety. The substance of the orders carry validity under the law, not the electronic NEFs. See, e.g., Nichols-Morris Corp. v. Morris, 279 F.2d 81, 82 (2d Cir. 1960) (noting time to appeal from judgment begins to run from date of its entry, not from notice of its entry). The Court must agree with Plaintiffs opposition to Defendants' motion and finds it very troublesome that: for almost 52 days after the entry of the orders, none of the at least eighteen counsel that received the NEFs on behalf of Defendants, even after admittedly having their assistants download and file such orders, bothered to read the orders issued by the Court, check the docket for activity, or check on the status of the case. Such an omission is particularly alarming in this case where a $40 million judgment has been entered against Defendants. The Court also finds it troublesome that defense counsel admittedly received notice, on the same day as the other orders at issue, that its motion for a new trial and JMOL on invalidity had been denied and that the Court had ruled on Plaintiffs bill of costs. Defense counsel should be aware that costs are not assessed by the Court until all pending matters that affect the finality of judgment, including post-trial motions, have been ruled on. See generally FED. R. Civ. P. 54(d) (noting that costs are generally awarded as a matter of course to the prevailing party); see Shum v. Intel Corp., 629 F.3d 1360,1366-70 (Fed. Cir. 2010) (same)."

The district court also rejected the argument that AT&T's counsel did not receive notice of the orders. "The Court is not convinced that Defendants failed to receive notification that their substantive post-trial motions had been disposed of. Instead, the Court finds Defendants received notification that all their substantive post-trial motions had been denied the moment the corresponding orders were downloaded by legal assistants in both of defense counsel's law firms. In other words, the Court finds that "lack of notice" is not equivalent or excusable by an attorney's failure to read the Court's orders. See Khor Chin Lim v. Courtcall Inc., 683 F.3d 378, 379-81 (11th Cir. 2012) (noting failure of attorney to open mail does not constitute failure to receive notice for the purpose of Rule 4(a)(6)); Bradley v. Kelly Services, Inc., 224 Fed. App'x 893, 895 (11th Cir. 2007) (noting that Rule 77(d) deems mailing of notices by the clerk to be notice to a party, regardless of whether the notice is actually received or read by the party). Because Defendants received notice of the denial of their post-trial motions, this Court will not reopen the time to file a notice of appeal under Rule 4(a)(6), which requires a lack of notice."

The district court also fund that there would be prejudice to the plaintiff if the district court granted the order. "Contrary to Defendants' assertion, the Court finds that Plaintiff would be prejudiced if Defendants are permitted to file its notice of appeal after missing the deadline. This prejudice also prevents the Court from granting Defendants an extension of time to file its notice of appeal under Rule 4(a)(6)."

Two-Way Media, LLC v. AT&T Operations, Inc., et al., Case No. SA-09-CA-00476-OLG (W.D. Tex. Feb. 2014)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jeffer Mangels Butler & Mitchell LLP | Attorney Advertising

Written by:

Jeffer Mangels Butler & Mitchell LLP
Contact
more
less

Jeffer Mangels Butler & Mitchell LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.