Get Your Revised Eleventh Circuit Rules Here — Bonus Tip for iPad Users!

The Eleventh Circuit published a new, complete .pdf of its rules effective August 1, 2012. The changes to the Court’s local rules and IOPs are minor, but at least one of them is very interesting: the court has changed the rule to allow folks to purchase CDs of oral argument. The Court also amended the rules to eliminate references to specific dollar amounts for fees, so that it no longer need amend the local rules whenever there is a statutory fee change.

The Eleventh Circuit has always kindly provided a guide for replacing the pages where there are changes in your current copy of the rules, so that practitioners can retain their annotations and only pull out the pages where there are actual changes. If, like me, you’ve switched to using an iPad for most of your research needs, Adobe Acrobat X makes it very simple to do the electronic equivalent of changing out the necessary pages of your notebook. Save the new rules to your computer at an easy to find location, then open your old copy and under TOOLS select “REPLACE”. Adobe will prompt you to select the new file from which you want to take the replacement pages:

Screen Capture of Replace Pages Dialog

In this case, the .pdf page numbers and the listed page numbers align perfectly, so it is very simple to follow the directions on page 2 of the Court’s .pdf and replace, section by section, the necessary pages. And voila! My copy of the rules is up to date, and I didn’t have to give up all of my annotations.

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].