The Federal Rules of Appellate Procedure (FRAP) provide for the time to appeal a civil judgment to be deferred when certain post-decision motions are pending, provided the motions themselves are timely. When no post-decision motion is pending, the time to appeal is 30 days from entry of the judgment, pursuant to FRAP 4(a)(1)(A). The time to appeal is triggered by the entry of the judgment in the civil docket, pursuant to Federal Rule of Civil Procedure (FRCP) 79(a), and not by service of the judgment with notice of entry. |
The post-decisional motions which, when timely filed in the district court, defer the time to appeal are listed in FRAP 4(a)(4)(A): • For judgment as a matter of law on the ground of insufficient evidence under FRCP 50(b) • To amend • or make additional findings of fact under FRCP 52(b) whether or not granting the motion would alter the judgment • To alter or amend the judgment under FRCP 59 • For attorneys’ fees under FRCP 54 (d) if the district court extends the time for appeal under Rule 58 • For a new trial under FRCP 59(a) • For relief from a judgment under FRCP 60 if filed within 28 days after entry of the judgment This article will discuss each of these grounds in turn. Motion for judgment as a matter of law under FRCP 50(b) Motion to amend pursuant to FRCP 52(b) Motion to alter or amend the judgment under FRCP 59 Motion for attorneys’ fees under FRCP 54(d) Motion for a new trial under FRCP 59(a) Motion for relief from a judgment under FRCP 60 Motions not listed in FRAP (4)(a)(4)(A) In bankruptcy matters, Rule 8015 provides that a timely motion for rehearing of a final judgment, order, or decree of a District Court exercising jurisdiction in a bankruptcy case defers the time for appeal to the Circuit Court of Appeals for all parties until entry of the order denying rehearing or the entry of a subsequent judgment. The motion is timely if filed within 14 days after entry of the judgment, order or decree sought to be reheard. The method for computing the 14 day period is governed by Bankruptcy Rule 9006(a), not FRCP 6(a). In Re Eichelberger15 FRAP 6 governs bankruptcy appeals. Additional Considerations As always, local rules must be carefully reviewed for nuances to these general rules. For example, the Second Circuit’s Local Rule 4.2 provides that when a FRAP 4(a)(4) motion is made after a notice of appeal has been filed, the party who has filed the appeal must “promptly” notify the Circuit of the filing of the motion and must notify the Circuit within 14 days after entry of the order disposing of the motion. Note that it is the party who filed the appeal who must advise the Circuit of the motion and its disposition regardless of whether another party has filed the FRAP 4(a)(4) motion. Local Rule 6.1 provides that all local rules and Internal Operating Procedures (IOPs) applicable to civil appeals are applicable in bankruptcy cases. When making a motion in the Federal District Court, the individual judge’s rules must also be consulted in addition to the local District Court’s rules. |
Dominic J. Sichenzia is a trial and appellate lawyer in Carle Place. He is a former Director of the Bar Association, former Chair of the Ethics Committee and is currently Mediation Coordinator for the NCBA Grievance Committee. |
1. __F Supp 2d __, (SDNY, 2011) 2. 626 F 3d 143 (CA 2. 2010) 3. 171 F 3d 98, 101 (CA 2, 2010) 4. 47 F 3d 27, 32 (CA 2, 1995) 5. 530 U.S. 133 (2000) 6. 528 U.S. 440, 453-454 (2000) 7. 311 F 2d 439, 440 (CA 2, 1962) 8. 831 F. Supp. 167, 169 (SDNY, 1993) 9. 791 F 2d 1207, 1219 (CA 5, 1986) 10. 682 F 2d 37, 40 (CA 2, 1982) 11. 223 F 3d 130, 137-138 (CA 2, 2000) 12. 465 F 3d 1267, 1271-72 (CA 11, 2006) 13. 25 F 3d 298, 301 n. 3 (CA 6, 1994) 14. 181 F 3d 832, 837 (CA 7, 1999) 15. 943 F 2d 536 (CA 5, 1991) 16. 184 F 3d 439, 436 (CA 5, 1999) 17. 489 U.S. 169, 174 (1989) 18. 959 F. 2d 368, 372 (CA 2, 1992) |
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