Scorn for Federal Judge’s Procedural Peccadillo

MANHATTAN (CN) - The Second Circuit gave a tongue-lashing to a Brooklyn federal judge over her personal rules regarding filing appeals.

Circuit Judge Pierre Leval doesn't name names in his 15-page ruling, but court documents show the judge in the underlying complaint that landed before the federal appeals court was U.S. District Judge Margo Brodie.

"We very strongly recommend that district courts promptly review their individual rules and practices so as to eliminate the unacceptable risk that litigants will forfeit rights because of observance of rules promulgated by individual judges, especially with regard to rules that are of questionable consistency with the governing provisions of the federal rules and statuses," Leval wrote for the three-judge panel.

Attorney Todd Bank had filed a class action in July 2012 against Cynosure on behalf of his client, Ari Weitzner, a Brooklyn-based ophthalmologist, to stop the company from sending unwanted faxes to tout its "light-based products for medical and aesthetic use."

The lawsuit was first brought to Massachusetts Superior Court in 2005, but its motion for class certification was denied. The case was then brought to Brooklyn Federal Court.

Meanwhile, Cyhnosure confessed judgment. A final judgment awarded Weitzner $6,000 in damages and barred Cynosure from sending the unwanted faxes.

Weitzner appealed.

But while his appeal was still pending, the Brooklyn Federal court judge ordered him to show cause why the case should not be dismissed and considered his request for a stay pending resolution of the state appeal.

The case was ultimately dismissed and an official judgment was entered in March 2013.

Ten days later, plaintiff sought a motion for reconsideration of the judgment.

But they didn't file the motion because the judge has a rule barring litigants from filing a motion until the motion is fully briefed and ready for adjudication.

"The rule instructs the moving party instead to serve the motion on the adversary and to advise the court by letter that the motion has been served," Leval said of the judge's personal rule. (emphasis in original.)

The district judge met with attorneys and issued a scheduling order to submit the "not-yet filed" motion in 2013.

The order called for Cynosure to deliver a response by April, and that plaintiffs should reply by April 26, 2013.

The company timely served its opposition. The plaintiffs did not serve their reply until August that year, causing defendant to object with the argument that the motion should be denied because it wasn't timely filed.

"Without mention of defendant's untimeliness argument," the district judge denied the motion for reconsideration in February 2014, Leval wrote.

Less than 30 days later, in March, the plaintiffs filed a notice of appeal of the judgment.

The defendant balked, claiming that the notice of appeal was filed "well beyond the 30-day limit prescribed by federal law."

"Although plaintiffs did not file the motion for reconsideration within 28 days as the rule's literal terms require, they served the motion well within the 28-day period allowing for tolling, raising the question whether the specific requirement to file should be strictly interpreted," Leval wrote. (emphases in original.)

The circuit noted that the "drafting history" of the law suggests that the "requirement to file, rather than serve, a motion for reconsideration within 28 days in order to toll time to appeal was a conscious choice."

The plaintiffs claimed that the district judge "implicitly rejected" defendant's contention that the reconsideration motion was untimely.

"But two different time limits are at work here," Leval wrote. "The issue we face is not whether the motion for reconsideration was timely, permitting it to be considered by the district court."

The question is whether the motion was timely filed pursuant to federal rules requiring a 30-day deadline.

The district judge "did indeed ignore" defendant's objection to the motion for reconsideration as not being made within the reasonable amount of time, Leval said, noting that federal laws impose a "more stringent standard for the tolling of time to appeal, explicitly requiring filing of the motion for reconsideration within 28 days of judgment."

The plaintiffs claimed they would have filed the ruling within the required 28 days, but they were bound by the judge's "Individual Rule," which requires that filing be deferred until the motion is fully briefed.

"We are not at liberty, however, to grant plaintiffs equitable relief from the 28-day filing requirement unless that requirement should be deemed a 'claim processing' rule rather than a 'jurisdictional' rule under the terminology adopted by the Supreme Court."

The Supreme Court said in Bowles v. Russell in 2007 that the limit for filing a notice of appeal is "jurisdictional" and therefore may not be waived for equitable reasons.

The circuit explained that the "litmus test" for a "jurisdictional" rule is its institutional provenance: time limits that are mandated by statute ... are 'jurisdictional," meaning that they are not subject to waiver or equitable exception."

In fact, several Circuit Courts have revisited cases and reversed previous findings that certain time requirements were "jurisdictional," Leval said.

The Second Circuit has since held that time requirements and immigration regulations are claim-processing rules subject to equitable exception and waiver because they are not imposed by statute.

"So far as we are aware, no circuit has directly answered whether the 28-day requirement for tolling set forth" in the federal law is "subject to equitable exception under Bowles," he wrote.

"While it is true that in many cases counsel will have the opportunity, as in this case, to ask the judge's leave to file without delay, a judge is not always available to deal promptly with an emergency application," Leval said. "Nor is there a guarantee that all judges will reasonably grant an exception from compliance with their rules.

"Litigants should not be put in the position of risking to be held in contempt for violation of the court's rules - simply for filing with the court a paper whose filing is not only permitted, but also required, by the federal rules," Leval said.

"We have no doubt that the purpose of such individual calendar rules is to assist district courts in dealing with significant administrative burdens," Leval wrote. "Nonetheless, we are confident that the useful objectives of such rules could be achieved in a manner that would avoid these unacceptable pitfalls."

The case "raises once again then troublesome issue of an appellant's failure to file a timely appeal because of the appellant's compliance with an individual calendar rule promulgated by a district judge," Leval said.

Even with the concerns being raised, the Second Circuit said the issue was nevertheless beyond their reach and couldn't be considered.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit