When in Doubt, Assume the Earliest Possible Deadline

by Carlton Fields

One of the most important factors in preserving your appellate rights is knowing when the clock starts running on your deadline to appeal. While the answer may appear simple as a matter of course, that is not always the case. In Love v. Wal-Mart Stores, Inc., 865 F.3d 1322 (11th Cir. 2017), the Eleventh Circuit dismissed an appeal as untimely because it was not filed within 30 days of a stipulation of voluntary dismissal under Rule 41. This decision reminds practitioners that, when in doubt, assume the earliest possible deadline for your appeal.

Love arose after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), a decision in which the Supreme Court reversed the certification of a nationwide putative class of female Wal-Mart employees. Certain putative members of that class then brought a separate action and sought certification of a regional class. 

While the district court dismissed the class claims as untimely, it allowed the individual claims to go forward. The named plaintiffs subsequently settled their individual claims with Wal-Mart. Thereafter,

  • On October 16, 2015, the named plaintiffs and Wal-Mart filed a stipulation of voluntary dismissal with prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
  • On October 23, 2015, the district court entered an order acknowledging the parties’ dismissal of the case and denying all pending motions as moot.
  • On November 6, 2015, unnamed members of the putative class filed a motion to for leave to intervene, on the sole basis that intervention would enable them to appeal the district court’s order dismissing the class claims.
  • On November 19, 2015, the district court denied the motion to intervene, holding that the stipulated dismissal stripped the district court of jurisdiction to hear the motion.
  • Also on November 19, 2015, a group of would-be class members filed their notice of appeal of both: (i) the order dismissing the class claims; and (ii) the order denying the motion to intervene.

On appeal, the Eleventh Circuit held the appeal of the order dismissing the class claims was untimely because it was filed 34 days after “the judgment or order appealed from,” under Rule of Appellate Procedure 4. The “judgment or order appealed from” was the October 16, 2015, stipulation of voluntary dismissal filed by the named plaintiffs and Wal-Mart. As to the order denying the motion to intervene, the Eleventh Circuit held that the appeal was timely, but nonetheless moot because the would-be class members sought intervention only to appeal the order dismissing the class claims.

The Eleventh Circuit explained that “the stipulated dismissal resolved all of the claims of all the parties to the case at that time, which did not include the would-be intervenors,” reasoning: 

Because FRCP 41(a)(1)(A)(ii) specifies the plaintiff can by stipulation dismiss an action ‘without a court order,’ the ‘plain language of Rule 41(a)(1)(A)(ii) requires that a stipulation filed pursuant to that subsection is self-executing and dismisses the case upon its becoming effective,’ i.e., ‘upon filing unless it explicitly conditions its effectiveness on a subsequent occurrence.’ (emphases added).

The stipulated dismissal in Love did not “explicitly condition its effectiveness on a subsequent occurrence.” As a result, the October 16 stipulated dismissal, itself, was “the judgment or order appealed from,” under Federal Rule of Appellate Procedure 4. The Eleventh Circuit explained that the district court’s subsequent October 23 order was not necessary, and that it did not affect the finality of the October 16 stipulated dismissal. Accordingly, the November 19 appeal was untimely as to the dismissal of the class claims.

Preservation Tip: In any appeal, you want to focus on the merits of your arguments. You do not want to be arguing over the timeliness of the appeal itself. Because the consequences for an error are fatal to your ability to appeal, you should aim to avoid timeliness issues altogether, by: (i) identifying the procedural posture of the case and researching both the applicable trial court and appellate rules; or (ii) consulting an appellate practitioner already familiar with the issues. Regardless, when in doubt, always assume the earliest possible deadline. 

Written by:

Carlton Fields

Carlton Fields 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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.