New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Appeals—Jurisdiction: Dist. Ct. Cannot Extend 59(e) Deadline & Party Cannot Rely on An Extension Given — Untimely 59(e) Motion Should Be Deemed 60(b) Motion — Rule 11 Sanctions Denied for Lack of Separate Motion & Failure to Afford Safe Harbor

Download PDF

Colter v. Omni Ins. Co., 2018 WL 898679 (4th Cir. Feb. 15, 2018):

PER CURIAM:

Allison Colter appeals the district court’s order dismissing her complaint pursuant to Fed. R. Civ. P. 12(b)(6), and denying her motion to amend her complaint (hereinafter, “dismissal order”). Colter also appeals the district court’s order denying her postjudgment motion filed pursuant to Fed. R. Civ. P. 59(e). Omni Insurance Co. and Omni Indemnity Co. (collectively, “Omni”) cross-appeal from the district court’s denial of its request for sanctions pursuant to Fed. R. Civ. P. 11(c)(2). For the reasons that follow, we affirm the district court’s order denying Colter’s postjudgment motion and denying Omni’s request for sanctions, and we dismiss Colter’s appeal from the district court’s dismissal order.

 “[W]e have an independent obligation to verify the existence of appellate jurisdiction.” Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (internal quotation marks omitted). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). A notice of appeal must be filed no more than 30 days after the entry of the district court’s final judgment or order, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6).

However, when a party files a timely Rule 59 motion before filing a notice of appeal, the time to file an appeal runs from the entry of the order resolving the Rule 59 motion. Fed. R. App. P. 4(a)(4)(A)(iv). A Rule 59(e) motion must be filed within 28 days of entry of the district court’s judgment. Fed. R. Civ. P. 59(e). A district court cannot extend the time to file a Rule 59(e) motion. Fed. R. Civ. P. 6(b)(2).

Here, the district court entered its dismissal order on July 12, 2016. On July 18, 2016, Colter filed an unopposed motion for an extension of time to file a Rule 59(e) motion. The district court granted Colter’s motion, though it was without authority to do so. See Fed. R. Civ. P. 6(b)(2). Colter then filed her Rule 59(e) motion on August 24, 2016, more than 28 days after the entry of the district court’s dismissal order, which rendered the motion untimely. The district court denied Colter’s Rule 59(e) motion on January 7, 2017, and Colter noted an appeal from both the dismissal order and the order denying her Rule 59(e) motion on January 17, 2017. Omni noted its cross-appeal on January 27, 2017.

Because Colter’s Rule 59(e) motion was not timely filed, the appeal period for the dismissal order was not tolled by the filing of that motion. See Fed. R. App. P. 4(a)(4)(A). Consequently, Colter’s appeal from the dismissal order was filed well after the 30-day appeal period expired. We therefore lack jurisdiction to consider the district court’s dismissal order. See Bowles, 551 U.S. at 214.

Colter seeks to avoid this result by arguing that she believed her Rule 59(e) motion would be timely filed and toll the appeal period because the district court granted her motion for an extension of time to file her Rule 59(e) motion. Colter’s argument relies on the “unique circumstances doctrine.” See Alston v. MCI Commc’ns Corp., 84 F.3d 705, 706-07 (4th Cir. 1996) (describing doctrine). Assuming that the unique circumstances doctrine was not wholly vitiated by Bowles, 551 U.S. at 214, we conclude that Colter’s argument under that doctrine is foreclosed by our decision in Panhorst v. United States, 241 F.3d 367 (4th Cir. 2001). In Panhorst, we observed that “a party cannot reasonably rely on a district court’s improper extension of time where the party requests relief that, as a plain reading of the Rules [of Civil Procedure] would show, is beyond the court’s authority.” Id. at 373. Accordingly, Colter could not have reasonably relied on the district court’s order granting her an extension of time to conclude that her Rule 59(e) motion would be timely filed.

We do, however, have jurisdiction to review the district court’s order denying Colter’s Rule 59(e) motion and denying Omni’s request for sanctions. Beginning with Colter’s postjudgment motion, because the motion was filed beyond the 28-day period provided in Rule 59(e), the district court should have construed the motion as a Fed. R. Civ. P. 60(b) motion.* See MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 278 (4th Cir. 2008); Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Nevertheless, we have reviewed the denial of Colter’s postjudgment motion under the standards for both Rule 59(e) and Rule 60(b), and we conclude that the district court did not abuse its discretion in denying the motion. See Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en banc) (stating standard of review for Rule 60(b) motion); Robinson v. Wix Filtration Corp., 599 F.3d 403, 407-13 (4th Cir. 2010) (same for Rule 59(e) motion and considering both Rule 59(e) and Rule 60(b) standards on appeal from denial of motion construed by district court as Rule 59(e) motion).

Finally, we discern no abuse of discretion in the district court’s denial of Omni’s request for sanctions because Omni failed to adhere to the mandates of Fed. R. Civ. P. 11(c)(2). See Am. Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 321 (4th Cir. 2003). Omni’s request for sanctions was not contained in a separate motion, and Omni also ran afoul of Rule 11(c)(2)’s safe harbor provision. See Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d 385, 389 (4th Cir. 2004) (en banc).

Accordingly, we affirm the district court’s order denying Colter’s postjudgment motion and denying Omni’s request for sanctions, and we dismiss Colter’s appeal from the district court’s dismissal order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

 

AFFIRMED IN PART; DISMISSED IN PART

 

All Citations

--- Fed.Appx. ----, 2018 WL 898679

Footnotes

 

*

 

Colter raises this point in relation to the timeliness of her appeal from the dismissal order and contends that, if her Rule 59(e) motion was untimely, then the motion should be construed as a timely filed Rule 60(b) motion. However, construing Colter’s Rule 59(e) motion as a Rule 60(b) motion does not affect the untimeliness of her appeal from the dismissal order because a Rule 60(b) motion only tolls the appeal period if filed within 28 days of the entry of judgment, Fed. R. App. P. 4(a)(4)(A)(vi), and Colter’s motion was not filed within that period.

 

 

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice