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Nassau County Bar Association

Post-Decision Motions that Defer Time to Appeal Civil Judgments in Federal Court

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)
The first motion is a motion for judgment as a matter of law on the ground of insufficient evidence under FRCP 50(b). It is important to be aware that the only ground for this motion is insufficiency of the evidence, not that the verdict was contrary to the weight of the evidence. In fact, the court, in ruling on this motion, the court may not consider the credibility of witnesses, resolve conflicts in testimony or evaluate the weight of the evidence. Newton v. City of New York;1 McKithen v. Brown;2 Williams v. County of Westchester;3 Caruso v Forslund.4 The court must consider the entire record, not only the evidence in opposition to the motion. Reeves v. Sanderson Plumbing Products, Inc.5 If evidence was erroneously admitted, this evidence may not be considered on the motion. Weisgram v. Marley Co.6 The motion must be filed no later than 28 days after the discharge of the jury.

Motion to amend pursuant to FRCP 52(b)
The time to appeal may also be deferred by a motion to amend or make additional findings of fact under FRCP 52(b) whether or not granting the motion would alter the judgment. The full time to appeal begins to run from the entry of the order disposing of the motion, even if the motion is denied and the denial of the motion itself is not appealable. Spampinato v. New York.7 The purpose of the motion is to correct, clarify or amplify the findings so that the appellate court will have a thorough understanding of the factual basis of the trial court’s decision. United States v. Local 1801-1, International Longshore­men’s Assn.8 The parties may use the motion to petition the court to amend findings of fact, to correct manifest error of law or fact or to present newly discovered evidence, but not evidence that was available but not proffered. Fontinot v. Mesa Petroleum Co.9 This motion must also be filed no later than 28 days after the entry of judgment.

Motion to alter or amend the judgment under FRCP 59
A motion to alter or amend the judgment under FRCP 59 must also be filed no later than 28 days after entry. If the motion is granted, a new judgment must be entered and this judgment is appealable on entry. Lyell Theatre Corp. v. Loews Corps.10 If the motion is denied, a new judgment must also be entered and is appealable on entry. Lyell, supra. Supporting affidavits must be filed with the motion and opposing affidavits must be filed no later than 14 days after service of the moving affidavits.

Motion for attorneys’ fees under FRCP 54(d)
A motion for attorneys’ fees under FRCP 54 (d) will defer the time to appeal if the district court extends the time for appeal under Rule 58. Unlike the first three motions, this one must be filed no later than 14 days after entry of judgment pursuant to FRCP 54(d)(2)(B). If the motion for fees is combined with a timely motion to alter or amend the judgment under Rule 59(e), the district court need not make an order extending the time to appeal since the Rule 59(e) motion does this automatically. Jones v. Unum Life Ins. Co. of America.11 A claim for attorneys’ fees must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages. These rules do not apply to claims for fees as sanctions for violation of the rules or as sanctions under 28 U.S.C. § 1927 (counsel’s liability for excessive costs resulting from unreasonably and vexatiously multiplying proceedings).

Motion for a new trial under FRCP 59(a)
Like the motion to alter or amend the judgment, a motion for a new trial under FRCP 59(a) must be filed within 28 days of entry of the judgment. Where the judgment resulted from a nonjury trial, the court may open the judgment, take additional testimony, amend findings of fact and conclusions of law or make new ones and direct entry of a new judgment.

Motion for relief from a judgment under FRCP 60
If filed within 28 days after entry of the judgment, a motion for relief from a judgment under FRCP 60 will also defer the time to appeal. It is important to note that, while a Rule 60(b) motion by its terms is generally timely if made within a year of entry of the judgment, if made after the 28 day period, the motion does not defer the time to appeal the underlying judgment. See Dresdner Bank AF v. M/V Olympia Voyager;12 United States v. Grable.13 If no motion under Rule 60 has been made, the district court may on its own correct a clerical mistake. Such action by the court on its own does not, however, defer or restart the time for appeal.

Motions not listed in FRAP (4)(a)(4)(A)
Additionally, a motion not specifically listed in FRAP 4(a)(4)(A) may also toll the time to take an appeal under the long standing rule that a motion for reconsideration of an appealable judgment or order defers the time to take an appeal provided that the motion is filed within the time for an appeal. See Blair v. Equifax Check Services, Inc.14 (motion to reconsider class certification tolls time for appeal if motion is made within time for seeking permission to appeal from such orders under FRCP 23(f)). It should be noted that FRAP 4(a)(4)(A) does not by its terms apply to appeals from orders.

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
It is the substance of the post-decisional motion, not its label, which determines whether or not the time to appeal is deferred. An improperly labeled motion will nevertheless defer the appeal time if the motion challenges the correctness of the judgment and does not raise issues that are merely collateral. In Anderson v. Pasadena Independent & School District,16 the District Court entered an appealable order remanding the case to the state court and imposed sanctions on the defendant for improper removal. The post-decision motion for reconsideration which sought only to remove the sanctions was held to be collateral and did not defer the time to appeal. By the same token, an improperly labeled motion which nevertheless raises substantive claims will defer the time to appeal. See, Osterneck v. Ernst & Whinney;17 Harbarside Refrigerated Services, Inc. v. Vogel.18

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)