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Civil Procedure

Late appeal denied for lawyer who didn’t update email address, divided 2nd Circuit panel says

Posted Jan 25, 2013 12:53 PM CDT
By Martha Neil

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A lawyer can't file a late notice of appeal, due to receiving a delayed notice of a judgment, when the reason for the delayed notice is that he didn't update his email address in the court's electronic filing system, a divided federal appeals court panel held Thursday.

Reversing a federal district court's decision that the failure by W. Mark Mullineaux to file a timely notice of appeal within the 30-day deadline was excusable, the 2nd U.S. Circuit Court of Appeals said in its opinion (PDF) that the delay was the Astor Weiss Kaplan & Mandel attorney's fault, reports Reuters.

Mullineaux had been allowed to make the late filing under Federal Rule of Appellate Procedure 4(a)(6), which gives the court discretion to excuse a late appeal if a lawyer can show that he didn't get timely notice of a judgment and that the other side isn't prejudiced.

"We recognize that we appear to be the first court of appeals to identify an abuse of discretion in a district court’s grant of a Rule 4(a)(6) motion where the preconditions for relief were met," explained the majority in the 2-1 decision. "The responsibility for determining predicate compliance with [Rule 4(a)(6)] is vested in the district court and generally the district court will be best suited to weigh the competing factors relevant to a Rule 4(a)(6) motion. But, as we have recognized, appellate courts do have a role to play with respect to a district court’s exercise of discretion under Rule 4(a)."

The dissenting judge said the rule "was designed to grant district courts the discretion to allow parties to file untimely notices of appeal under certain circumstances, notwithstanding neglect of their obligation to monitor court dockets to be aware of developments in their cases. In this case, as the majority rightly holds, appellant satisfied the explicit requirements of the Rule, such that the district court had discretion to grant the requested relief," he wrote. "Because the district court did not act arbitrarily or without reason in granting appellant’s motion, I would affirm its decision."

Mullineaux represents Communications Network International in a matter related to the WorldCom bankruptcy. He declined to comment when contacted Thursday by the news agency, except to say that he is reviewing the 2nd Circuit decision.

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