Thursday, April 29, 2010

Decision of Interest: Deadline to Appeal When a Post-Judgment Motion is Withdrawn

Howard Bashman at How Appealing reports this week on the Tenth Circuit's decision in Vanderwerf v. SmithKline Beecham Corp. (No. 08-3218), a case involving the defendant’s drug Paxil. After the district court granted summary judgment for the defendant, the plaintiffs filed a timely motion to reconsider under FRCP 59. That motion remained pending for seven months, at which point the plaintiffs withdrew the motion and filed a notice of appeal that same day.

Ordinarily, filing a timely Rule 59 motion tolls the 30-day deadline to file a notice appeal. See Fed. R. App. P. 4(a)(4). In a 2-1 decision, the Tenth Circuit in Vanderwerf holds that this tolling occurs only when the district court “ent[ers] an order” disposing of the post-judgment motion. The 30-day deadline is not tolled when a party voluntarily withdraws the post-judgment motion. Thus, the Vanderwerfs’ notice of appeal was untimely, having been filed seven months after final judgment was entered. The majority wrote: "Although we note that there is no suggestion that the Vanderwerfs acted in bad faith, we are hamstrung by the mandatory procedural rules," which must be "strictly construe[d]." It concluded:

"We recognize the severity of today’s holding, and empathize with the plight of parties who are effectively prohibited from filing a notice of appeal because of the inaction of a district court. But we must rely upon the unambiguous standard we have consistently applied to the timeliness requirements of Rule 4. Quite simply, the time to file an appeal in a civil case is tolled by the timely filing of a motion listed in Rule 4(a)(4)(A), and begins to run anew from the entry of the order disposing of the last such remaining motion."

The dissenting judge disagreed with the majority’s interpretation and argued that the majority’s approach is in tension with decisions from other circuits, e.g., United States v. Rodriguez, 892 F.2d 233 (2d Cir. 1989), and Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439 (1986).

The decision in Vanderwerf is available here, at 2010 WL 1673114, or at 2010 U.S. App. LEXIS 8703.


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