Dated versus Filed versus Entered

In federal court, several important (and jurisdictional) post-trial deadlines are keyed off of the “entry of judgment.” For example, a motion for a new trial “must be filed no later than 28 days after the entry of judgment,” as must a motion to alter or amend a judgment. See Fed. R. Civ. P. 59. And a notice of appeal “must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.” See Fed. R. App. P. 4. Even though Fed. R. App. P. 4 and Fed. R. Civ. P. 58 go out of their way to explain what it means for an item to be “entered,” there can still be confusion when an order granting summary judgment is dated differently from the separate document entering judgment — or worse, when the the docket reflects that the item is “signed” one day, “filed” another day, and the docket entry was made on yet a third day.

The Judgment is a Separate Document

Three important practice tips. First, it is the entry of the separate judgment, not the date of the memorandum or order, that controls “entry of judgment” where the order is one that requires a separate document under rule 58. In re Southeast Bank Corp., 97 F.3d 476, 478 (11th Cir. 1996). In Southeast Bank, the judgment was entered on one date, and the opinion was docketed three days later. The Eleventh Circuit stated that the date of the entry of the final judgment – not the entry of a trial court’s memorandum opinion in support of summary judgment – was the operative date for determining the timeliness of a motion to alter or amend the judgment, and therefore held that the trial court did not have jurisdiction to entertain such a motion that was filed the appropriate number of days after the memorandum opinion was filed. So make sure you are looking at the right document when calculating your deadlines.

Entry is the Key

Second, the date of entry of the judgment is controlling — not the date it is file stamped, listed as filed, or signed. Jones v. Gann, 703 F.2d 513 (11th Cir. 1983)(“The time for filing a notice of appeal begins to run not on the date that the judgment is filed but on the date the judgment is actually entered on the docket.”)(emphasis added). As the Southern District of Florida has explained, “an entry is not effective until it is actually placed on the docket sheet.” National Sav. Bank of Albany v. Jefferson Bank, 127 F.R.D. 218 (S.D. Fla. 1989). While ideally “the entry date would always coincide with the file stamp date, thereby automatically notifying the parties of the entry date and obviating the need for the parties to inquire as to the entry date,” that is not always the case. Thus, for purposes of calculating deadlines, “an order is ‘entered’ not when it is signed by the judge, nor when it is ‘filed’ (i.e., file stamped), but rather when it is actually recorded on the docket sheet.” Id.

No mailing days

Third, the operative phrase is “entry of judgment,” not service. It doesn’t matter if you were never served the judgment, many courts will charge you with knowledge of the docket. And because it is “entry”, not “service” the deadlines are not affected by the three day grace period for actions “within a specified time after service” allowe by Fed. R. Civ. P. 6(d).

The moral of the story is that one must calculate post trial deadlines very, very carefully. When in doubt, file early.

Calendar Carefully: Excusable Neglect

Repeat after the Eleventh Circuit:

“The timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate jurisdiction.”

(citation omitted).

Sure, there’s an out in Federal Court. You can ask the trial court for an enlargement of time to file the notice of appeal — if you can demonstrate excusable neglect or good cause. But in a recent unpublished opinion, the Eleventh Circuit upheld the trial court’s denial of such a motion, noting that:

miscalendaring a deadline was within the reasonable control of the Plaintiff, and that the “cumulative effect” of the Plaintiff’s missed deadlines exhibited an absence of good faith

The moral of the story: Don’t ever rely on a Rule 4(a)(5)(A)(ii) motion to extend the time to file a notice of appeal. The bar for establishing “excusable neglect or good cause” is a moving target, and review of the trial court’s decision on such a motion is on an abuse of discretion standard. So don’t mess around with your calendaring!

The case is Global Horizons Inc. v. Del Monte Fresh Produce N.A., Inc., No. 09-16508 (11th Cir. Aug. 17, 2010) [.pdf].

Days are Days

Even if you aren’t normally a rules geek, this is the year to order new rules books. On December 1, 2009, a far-reaching shift in time calculation rules goes into effect across all of the Federal rules of procedure. Referred to as the Days are Days approach, the intent is to remove confusion over when weekends are counted in time calculations, and when they are not. This basic principle has been implimented in both the rules of appellate procedure and the rules of civil procedure. Be aware of the changes in both sets of rules, as the calculation of some jurisdictional deadlines may be affected.

The Record: Journal of the Appellate Practice Section published a more detailed article about this change written by yours truly in its Fall 2009 issue. I’ve uploaded a .pdf of the article for your reading pleasure.