By: Patrick C. Furman, Esq.
Introduction
In appellate law, adhering to deadlines is essential. One of the most crucial aspects of the appeal process is ensuring that a notice of appeal is filed within the prescribed time frame. Failing to meet this deadline can have significant consequences, including the loss of the right to appeal and the dismissal of the case.
The Importance of Meeting Appeal Deadlines
The appellate process operates under strict timelines. After a final judgment has been issued by a lower court, a party wishing to appeal must file a notice of appeal within a set period—specifically, 30 days in a civil case.[1] If the notice of appeal is not filed within this timeframe, the right to appeal is forfeited forever because, as noted by the Supreme Court of the United States (“SCOTUS”), “the taking of an appeal within the prescribed time is mandatory and jurisdictional.”[2] It goes without saying, then, that an understanding of such deadlines is critical.
Post-Judgment Motions and Their Impact on the Appeal Deadline: An Automatic Toll?
There are instances where post-judgment motions may extend the deadline for filing an appeal. For example, the timely filing of any of the following motions will automatically toll the typical 30-day deadline to file an appeal: a motion for judgment under Fed. R. Civ. P. 50(b); a motion to amend or make additional factual findings under Fed. R. Civ. P. 52(b); a motion to alter or amend a judgment under Fed. R. Civ. P. 59; a motion for a new trial under Fed. R. Civ. P. 59; or a motion for relief from a judgment under Fed R. Civ. P. 60.[3] With these motions, the time to file a notice of appeal runs from the entry of the order disposing of that motion.[4]
By contrast, the timely filing of a post-judgment motion for attorneys’ fees under Fed. R. Civ. P. 54 does not automatically toll the 30-day deadline to file an appeal. This principle is reflected in the interplay between various Rules of Civil Procedure and Appellate Procedure.
Specifically, Federal Rule of Appellate Procedure 4 provides that a post-judgment motion for attorney’s fees will toll the appeal deadline “if the district court extends the time to appeal under Rule 58.”[5] Rule 58, in turn, provides that the time for appeal will not ordinarily be extended to award fees, but grants some discretion on the issue to district courts: “the court may act before a notice of appeal has been filed and effective to order that the motion have the same effect under [Fed. R. App. P.] 4(a)(4) as a timely motion under [Fed. R. Civ. P.] 59,”—i.e., to toll the 30-day appeal deadline for the underlying merits judgment. [6]
In Practice: Move to Stay the Appeal Deadline Pending a Post-Judgment Motion for Fees
Given the mandates of Federal Rule of Appellate Procedure 4 and Federal Rule of Civil Procedure 58, a party must act—i.e., submit a motion to the district court—to extend the deadline to appeal while a post-judgment motion for fees is pending. If a party does not request an extension and the court does not issue an order to extend the time to appeal, the original deadline for filing the notice of appeal remains in effect.
The Finality of a Merits Judgment Awarding Entitlement to Attorney’s Fees
One issue that may arise is whether a judgment is considered “final” for purposes of appeal when there remains an unresolved issue of attorney’s fees within the judgment itself. This situation may occur when a final merits decision also grants entitlement to attorney’s fees—but does not include the amount of fees to be awarded. While some litigants may argue that such an order is not “final” for purposes of appeal under 28 U.S.C. § 1291, courts have rejected this position.
In Budinich v. Becton Dickinson & Co., SCOTUS established a bright-line rule, applying to both federal question and diversity jurisdiction cases, that “an unresolved issue of attorney’s fees for the litigation in question does not prevent judgment on the merits from being final.”[7] The Supreme Court, citing the need for “operational consistency and predictability in the overall application of § 1291,” held that “a decision on the merits is a ‘final decision’ for purposes of § 1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.”[8]
The Role of a Separate or Amended Notice of Appeal
When a party intends to challenge a post-judgment order, such as an order disposing of a motion for attorney’s fees, they must file a timely, separate notice of appeal—or amend their original notice of appeal to include that order.[9] This requirement is outlined in Federal Rule of Appellate Procedure 4, which ensures that the appellate court has clear jurisdiction over all issues the party wishes to challenge.
Failure to properly include a post-judgment order in a notice of appeal means that the issue cannot be raised on appeal—resulting in the party losing the opportunity to challenge important aspects of the court’s decision, including the enforcement of orders related to fees and costs.
Conclusion
The failure to file a timely appeal, or to properly address post-judgment motions, can have dire consequences. For anyone involved in litigation, it’s essential to be aware of the deadlines and procedural requirements. This knowledge is key to ensuring that all issues, including post-judgment motions and enforcement orders, are properly addressed.
Patrick Furman is an attorney at Barakat + Bossa PLLC, located in Coral Gables, Florida. He represents domestic and international clients in business disputes and complex commercial litigation. He may be reached at pfurman@b2b.legal.
This post is intended to provide you with general information regarding appellate procedure, yet its content does not constitute specific legal advice. We recommend reaching out to your attorneys at Barakat + Bossa if you would like our office to assist you.
[1] See Fed. R. App. P. 4(a)(1)(A).
[2] Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988).
[3] See Fed. R. App. P. 4(a)(4)(A).
[4] See Fed. R. App. P. 4(a)(4)(A).
[5] Fed. R. App. P. 4(a)(4)(A)(iii).
[6] Fed. R. Civ. P. 58(e).
[7] Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988).
[8] Id. at 202-03.
[9] See Fed. R. App. P. 4(a)(4)(B)(ii).
