Time and Tide Wait for No Appellant: A Recent Ninth Circuit Decision Reflects the Importance of Determining When a Post-Judgment Motion Tolls the Appellate Clock

by Manatt, Phelps & Phillips, LLP

A recent Ninth Circuit decision makes clear that federal appellate procedure adheres to an old maxim: time and tide wait for no man. In other words, if you intend to appeal a decision in federal court, do not wait around. In Classic Concepts, Inc. v. Linen Source, Inc., __ F.3d __, No. 07-56870, 2013 WL 2350148 (9th Cir. May 30, 2013), a Ninth Circuit panel dismissed an appeal for lack of jurisdiction on the grounds that an untimely motion for reconsideration under Federal Rule of Civil Procedure 60(b) does not toll the time to file a notice of appeal.

Generally, a party in federal court must file a notice of appeal within 30 days of entry of the appealed order or judgment. Fed. R. App. P. 4(a)(1). But filing post-judgment motions makes it more difficult to calculate the deadline to appeal because such post-judgment motions can have a tolling effect, such that the time to appeal will begin to run anew after the district court rules on the tolling motions.

In Classic Concepts, Classic alleged that Defendants infringed its copyright of a design embedded in its rugs and other home goods. The jury agreed and awarded damages, but the district court invited the parties to brief whether injunctive relief was also appropriate. On September 28, 2007, the district court entered judgment against Defendants for copyright infringement, but was silent on the injunctive relief issue. The court also denied Defendants’ timely filed motions for judgment as a matter of law and for a new trial on October 30, 2007, thereby ending the tolling period and triggering the appellate clock.

Rather than filing its notice of appeal by November 29, 2007 (the end of the statutory period), Classic tried another strategy. Despite a lack of support in the Federal Rules, Classic moved for a permanent injunction on November 20, 2007. Given the parties’ earlier briefing of the injunctive relief issue, the district court construed that motion as one for reconsideration under Rule 60(b). The court denied the motion on December 4, 2007, and Classic filed a notice of appeal on December 13, 2007, two weeks after the November 29 deadline. But had Classic’s motion tolled the statutory period, the deadline would have been extended and Classic’s appeal would have been timely.

The Ninth Circuit dismissed the appeal as untimely. The panel acknowledged that under Federal Rule of Appellate Procedure 4(a), Defendants’ motions for judgment as a matter of law and a new trial extended the time for Classic to appeal from the underlying judgment. Similarly, when a party files a timely motion for relief under Rule 60, the period to file a notice of appeal is tolled. Fed. R. App. P. 4(a)(4). But a motion for reconsideration does not extend the time to appeal unless it is filed within 28 days after entry of judgment. Fed. R. App. P. 4(a)(4)(A)(vi). Classic’s Rule 60 motion was not filed within that time frame, and so had no effect whatsoever on the time to appeal.

Because the appeal was late and appellate deadlines are jurisdictional, the Ninth Circuit dismissed the appeal without reaching the merits, reasoning that “[i]f no time limit existed, litigants could never be certain a district judgment was final, leaving parties susceptible to new motions attacking a judgment many months after the entry of judgment appears in all respects to be final.” The panel further chastised the parties for “fail[ing] to examine the timeliness of th[e] appeal, … caus[ing] the needless expenditure of client and court resources.” And in an odd twist, the panel noted that counsel for Classic had been down this road before: Classic’s counsel had also been appellate counsel in the very case cited by the court for the proposition that a late motion for reconsideration has no tolling effect on Rule 4’s deadline to file a notice of appeal. See Reid Prods., Inc. v. Westport Ins. Corp., 400 F.3d 1118, 1119 (9th Cir. 2005).

Classic Concepts should caution any appellate attorney to calculate worst-case scenarios regarding the appeal deadline throughout the post-trial process. Failure to do so wastes court and client resources. More importantly, it increases the odds that clients might lose on appeal without any consideration of the merits. Conversely, appellees should carefully analyze the timeliness of an appeal, and move to dismiss if appropriate.

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.

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