Extension Of Time To Appeal May Not Be Available When A Party Has Failed Adequately To Monitor Events In A Case

If you do not learn of a federal trial court's dispositive order until more than 30 days after the order's entry, can you still appeal? A recent decision in Texas instructs that the answer may be "No." In Two-Way Media, LLC v. AT&T Operations, Inc., No. SA-09-CA-00476-OCG (W.D. Tex. Feb. 6, 2014), appeal pending, No. _____ (Fed. Cir., filed Feb. 13, 2014) (not yet docketed), the U.S. District Court for the Western District of Texas declined to extend or reopen the time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a), because it concluded that the would-be appellants failed properly to monitor the case to learn if appealable orders had been entered.

Several substantive and administrative motions were pending before the district court, including defendants' post-trial motions for judgment as a matter of law and a new trial. The court issued orders resolving all of the motions on the same day, but the notices defendants received from the court's electronic case filing (ECF) system did not state that the court had denied the substantive post-trial motions. Rather than reading the actual orders, counsel for the defendants relied on the descriptions in the ECF notices. Based on those descriptions, they believed the substantive post-trial motions were still pending. They did not learn otherwise until more than 30 days after the orders were entered. They then moved under Rule 4(a) to extend or reopen the time to file an appeal because they did not receive sufficient notice of the substance of the orders.

A notice of appeal must be filed within 30 days after entry of the judgment or order from which the appeal is taken. However, under Rule of Appellate Procedure 4(a)(5), the court may extend the time to file the notice of appeal upon a showing of good cause or excusable neglect, and, under Rule 4(a)(6), it may reopen the time for filing an appeal if, among other criteria, the moving party did not receive notice of the entry of the judgment or order within 21 days of its entry. Defendants' motion was filed under both provisions, but the court denied the motion.

The court held that the defendants failed to show good cause or excusable neglect because they were under a duty to monitor the status of a case and, in particular, to read all orders issued. It held that Rule 4(a)(6) did not apply because, although the ECF notice was incorrect, the defendants did actually receive and download the orders. In dicta, the court...