Jurisdiction and Extraordinary Writs

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Sometimes, you can win the battle and lose the war. So it can be with jurisdiction. Even if you are correct that there is no jurisdiction over an appeal in the Florida intermediate appellate courts, the Court still has the discretion to treat an appeal as a request for an extraordinary writ.

And that’s exactly what the Second District Court of Appeal did to late last month. (Full disclosure, I was attorney of record for the Appellee on this case). On the eve of a hearing on the Defendants’ summary judgment motion, the Plaintiff filed a notice of voluntary dismissal. The Defendant asked the trial court to strike the notice of voluntary dismissal, arguing that it had attained rights in the case precluding voluntary dismissal and fraud on the court. The trial court did so, and the plaintiff appealed.

The problem, however, was that the order they were attempting to appeal was neither a final appealable order nor an order available for interlocutory appeal. And I elloquently told the court so.

The Second DCA knew I was right:

We briefly address this court’s jurisdiction to consider this appeal. Service Experts’ notice of appeal was filed pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). The Northside defendants have argued that this court does not have jurisdiction under rule 9.130(a)(5) because that rule applies to orders entered on motions for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540. They state that their motion to strike the notice of voluntary dismissal was not made pursuant to rule 1.540 because that rule applies to final judgments, decrees, orders, or proceedings, and the voluntary dismissal they sought to set aside was not a final judgment, decree, or order. We agree with their procedural assessment.

However, the Court dug deep and created a remedy for the Plaintiff by converting the appeal to a writ of prohibition, pursuant to Rule 9.040(c):

Based on the facts of this case, appellate jurisdiction does not neatly fall within the confines of rule 9.130(a)(5). Nevertheless, Florida Rule of Appellate Procedure 9.040(c) provides that when a party seeks an improper remedy, “the cause shall be treated as if the proper remedy had been sought.” Here, a writ of prohibition is appropriate “to forestall an impending injury where no other appropriate and adequate legal remedy exists and only when damage is likely to follow.” City of Ocala v. Gard, 988 So.2d 1281, 1283 (Fla. 5th DCA 2008). It is “the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction” where there is no right to remedy the wrong at issue by direct appeal. Id. at 1283. Because we conclude that the trial court’s order was in excess of its jurisdiction, we have appellate jurisdiction to “forestall an impending injury”-forced litigation after the plaintiff’s notice of voluntary dismissal was filed. As there is no other adequate remedy, we convert this appeal to a writ of prohibition.

Now, the rules geek in me does, in fact, feel vindicated that I was right about the jurisdiction issue. But that’s not much comfort to the client, who had a favorable ruling overturned.

A request for clarification is pending on the appeal. The case is Service Experts, LLC v. Northside Air Conditioning & Elec. Service, Inc., No. 2D09-5416, ___ So.3d ____ (September 22, 2010) [.pdf].

For Whom the Waiver Tolls

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A footnote in recent 11th Circuit opinion tries to bring some order to the jurisdictional morass that is post trial motions, the time for filing an notice of appeal, and the difference between a claims processing rule (which can be waived) and subject matter jurisdiction (which cannot). It may only be a footnote, but I am going to take some time to unpack it here, as these post trial issues can be very confusing.

Is Your Post Trial Motion Timely?

A timely motion filed pursuant to Fed. R. Civ. P. 50(b) or 59(a) or (e) tolls the time for appealing a judgment pursuant to Fed. R. App. P. 4(a)(4)(A). In this case, the appellant did file post trial motions, but they were late. The court held that because they were not filed within 10 days, they did not toll the time for appealing the underlying judgment. And because the post trial motions did not have a tolling effect, the notice of appeal directed to the underlying judgment was likewise untimely. And there is no way around it — the timely filing of a notice of appeal is a jurisdictional requirement. This is because

“[t]he time limits in Appellate Rule 4(a) are based on the statutory time limits for filing a notice of appeal found in 28 U.S.C. § 2107″

citing Green v. DEA, 606 F.3d 1296, 1301 (11th Cir. 2010).

Did the Appellee Waive the Timeliness Issue?

So if the appeal of the underlying judgment was waived, why are we reading a 22 page opinion with the jurisdictional issue relegated to a page-long footnote? This is where claims processing versus jurisdiction comes in. Yes, the appellant waived jurisdiction over appeal of the underlying order by failing to file timely post-trial motions and waiting more than 30 days to file a notice of appeal. But the trial court attempted to give the appellant more time to file those post trial motions, even though such attempts are forbidden by Federal Rule of Civil Procedure 6(b)(2). While the trial court technically wasn’t allowed to give the two extra days to file the post trial motions that it gave, the Appellee failed to preserve an objection to that issue. The Eleventh Circuit treated Rule 6(b)(2) as a claims processing rule rather than an jurisdictional rule, and held that the Appellee waived objection to the fact that the trial court entertained entertained the post trial motions.

A Timely Notice of Appealing Untimley Post Trial Motions

The Eleventh Circuit concluded that while the trial court didn’t have authority to extend the time to file post trial motions, the court did have the authority to substantively rule on the motions since the Appellee didn’t preserve objection to that issue. The Appellant filed its notice of appeal of the order denying the post trial motions within 30 days of the trial court’s entry of that order. The court therefore held it had jurisdiction to review the order on the post trial motions.

Why it Matters

Hence the 22 page opinion in Advanced Bodycare Solutions, LLC v. Thione Int’l, Inc., No. 09-13151 at n. 15, __ F.3d __ (11th Cir. Aug. 25, 2010)[.pdf]. All of which, by the way, ended up in the appellate court upholding the verdict in an event. But the Appellant likely waived some of its grounds for appeal by missing jurisdiction for review of the underlying final judgment. Whether that would have mattered in this case is unclear. But in any event, it’s a shame to waste precious word count on jurisdictional issues, when the whole situation can be avoided by careful application of the rules.

Postscript

An important footnote from me on this footnote holding: The calculation of time in this case appears to have been made under the old calculation rules, wherein you excluded weekends and holidays for short periods of time. Don’t forget that nowadays, Days are Days.

Calendar Carefully: Excusable Neglect

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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].