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Hickey v. Scott

United States District Court, District Circuit

October 29, 2013

ROBERT HICKEY, Plaintiff,
v.
CHARLENE SCOTT, Defendant.

MEMORANDUM OPINION & ORDER

JOHN D. BATES, United States District Judge.

This action is on remand by order of the D.C. Circuit, which directed that this Court determine an issue related to the scope and timeliness of plaintiff Robert Hickey’s appeal. The case involves a long-running dispute between Hickey and defendant Charlene Scott, and its details are extensively detailed in this Court’s previous decisions. The parties narrowed the issues through pretrial motions practice, and the case was tried before a jury on the remaining claims in 2011. The jury returned a verdict against Hickey on his breach of contract claim for unpaid attorney’s fees against Scott, his former client, and effectively against Scott on her counterclaims for attorney negligence (or malpractice) and breach of fiduciary duty.[1] As a result, the jury did not award either party any recovery.

BACKGROUND

Before he filed a notice of appeal, Hickey was hospitalized due to serious injuries sustained in a car accident, which occurred during the time period after the jury returned its verdict but before the clerk entered judgment on the jury’s verdict—Scott’s motion for attorney’s fees was still pending. [ECF No. 87]. Two days after this Court issued an Order requiring Hickey to pay Scott’s attorney’s fees, [ECF No. 184], the clerk entered judgment on the jury’s verdict, pursuant to Federal Civil Rule 58(b)(1). [ECF No. 185]. While Hickey was in the hospital, and more than a month after judgment on the jury’s verdict was entered, his counsel filed an opposition to Scott’s bill of costs in this Court. About a month later, this Court denied the Bills of Costs submitted by both parties because neither party was a prevailing party entitled to recover costs. [ECF No. 189]. Hickey filed a notice of appeal thirty days after the entry of the Order denying his bill of costs. In that notice, he purported to appeal from “Orders issued by the District Court entered in this action including that issued on November 28, 2011 denying Appellant’[s] Bill of Costs.” [ECF No. 190].

Scott moved the D.C. Circuit to dismiss Hickey’s appeal as untimely. The D.C. Circuit denied her motion without prejudice, finding that Hickey’s notice of appeal was timely as to the denial of the bill of costs, and directing the parties to address in their briefs whether the notice of appeal was timely as to the judgment entered on the jury’s verdict. Extensive—and apparently unhelpful—briefing ensued. On October 17, 2013, the D.C. Circuit issued an Order requiring this Court to resolve the issue of the timeliness of Hickey’s appeal. Specifically, the D.C. Circuit directed this Court to determine

whether the notice of appeal and/or any other pertinent filings should be treated as a motion for an extension of time to appeal the orders entered in this case prior to November 28, 2011 [the date of the Order denying the parties’ bills of costs] under Fed. R. App. P. 4(a)(5) or as a motion to reopen the appeal period as to these orders under Fed. R. App. P. 4(a)(6) and, if so, whether the motion should be granted.

Because the judgment on the jury’s verdict entered on September 28, 2011 was the last order issued by the Court before the November 28, 2011 order denying the bills of costs, the Court will analyze the requirements of Rules 4(a)(5) and 4(a)(6) with reference to that September 28, 2011 judgment. Upon consideration of the D.C. Circuit’s order, Hickey’s notice of appeal, other relevant filings, applicable law, and the entire record herein, the Court finds that Hickey did not file anything capable of construction as either a motion for an extension of time to appeal or a motion to reopen the appeal period, and hence there is no vehicle through which an extension or reopening could be granted.

ANALYSIS

Under Federal Appellate Rule 4, a party ordinarily must file a notice of appeal within thirty days of “the entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Only under the limited circumstances provided in Rule 4(a) may a district court relax this jurisdictional requirement in a civil case. Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264 (1978) (deadline in Rule 4 is “mandatory and jurisdictional” (quoting United States v. Robinson, 361 U.S. 220, 229 (1960))); see also Bowles v. Russell, 551 U.S. 205, 214 (2007) (emphasizing that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement”).

I. Hickey did not file a Rule 4(a)(5) motion

A party may file a motion for extension of time to file a notice of appeal under Rule 4(a)(5) in two circumstances: first, if the party moves within thirty days after the party’s initial time to notice an appeal expires, or second, if the party shows “excusable neglect or good cause, ” regardless of when the motion is filed. Fed. R. App. P. 4(a)(5)(A)(i), (ii). The deputy clerk of the Court entered judgment on the jury’s general verdict denying all relief on September 28, 2011. That judgment finally adjudicated each of the parties’ remaining claims and counterclaims, and as such was an appealable final order under 28 U.S.C. § 1291. See Fed.R.Civ.P. 54. Hickey did not file any motions following entry of the jury’s verdict on September 28, 2011. The only two filings[2] made on his behalf were [188] an opposition to Scott’s bill of costs, filed by Hickey’s counsel on November 1, 2011, and [190] his notice of appeal, which he himself filed on December 28, 2011.

Because the deadline in Rule 4 is jurisdictional, the Supreme Court has cautioned that federal courts have no authority “to create equitable exceptions” to the deadline. Bowles, 551 U.S. at 214. Construing a notice of appeal as a motion for extension of time under Rule 4(a)(5) is one such equitable exception often pressed and equally as often rejected. “Eleven circuits have considered whether a notice of appeal can be treated as a motion for extension of time under Rule 4(a)(5) and all have answered in the negative.” United States ex rel. Green v. Serv. Contract Educ. & Training Trust Fund, 863 F.Supp.2d 18, 20-21 (D.D.C. 2012) (collecting cases). Although the D.C. Circuit has not decided the issue, another judge in this district has followed the “uniform guidance” of the other eleven circuits to hold that a notice of appeal cannot be treated as a motion for extension of time. Id.

The national uniformity of this holding stems from the 1979 amendments to the Federal Rules of Appellate Procedure: those amendments revised Rule 4(a)(5) to require a motion “in compliance with the F.R.C.P. and local rules of the district court.” Fed. R. App. P. 4 advisory committee’s note. Under the old rule, there was a “possible implication that prior to the time the initial appeal time has run, the district court may extend the time on the basis of an informal application, ” such as a late notice of appeal, but the amendment “would require that the application must be made by motion.” Id. Indeed, before the amendments, “case law ‘[i]n effect . . . treated the late-filed notice of appeal as’” a motion for extension of time. Brooks v. Britton, 669 F.2d 665, 667 (11th Cir. 1982) (citing Sanchez v. Board of Regents, 625 F.2d 521, 523 (5th Cir. 1980)). But after the amendments, eleven circuits came to the same conclusion: Rule 4(a)(5) requires an actual motion. This Court finds the holdings of eleven circuits and the committee notes, as well as the holding of another judge in this district, to be persuasive. Accordingly, the Court will not construe Hickey’s notice of appeal as a motion for extension of time, under either Rule 4(a)(5)(A)(i) or (ii).

That leaves Hickey’s opposition to Scott’s bill of costs, Docket No. 188, filed on November 1, 2011. To begin with, nothing in the above analysis suggests that courts may now construe “informal applications” other than notices of appeal as motions for extension of time. See Sanders v. United States, 113 F.3d 184, 186 (11th Cir. 1997) (“a formal motion for extension of time . . . must be filed in the district court”) (emphasis added); Campbell v. White, 721 F.2d 644, 646 (8th Cir. 1983) (“We are aware that before 1979 any kind of filing might be treated as a motion for extension . . . .”) (emphasis ...


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