May 13, 2013 – The Second Circuit denies a motion to reinstate an appeal after a dismissal for failure to file a brief in compliance with a scheduling order.

The Second Circuit cites a history of case backlog, along with desired adherence to the Court’s rules, as its rationale for denying to reinstate an appeal after an automatic dismissal. In the Second Circuit, it had been the practice for counsel to routinely request and receive extensions of time to file their appellate briefs, and this “trend” led to the Court having a large docket of appeals not ready for argument and determination. In response, the Second Circuit changed two key practices: 1) motions for extensions would be decided by a judge, as opposed to the Clerk’s Office; and 2) parties were permitted to select a filing date themselves within a 91-day period.

In this particular civil case, the appellant had a pending notice of appeal and filed a scheduling notification in mid-November 2012 selecting a filing date in mid-January 2013. Five days before the appellant’s brief was due, the appellant filed a motion for an extension of time stating that his office was significantly affected by Hurricane Sandy. The Second Circuit granted the extension and set a new filing date, but the order included “automatic dismissal” language. First, it stated that the appeal would be dismissed on a date certain unless a brief was filed by that date; and, second, that a motion for reconsideration or other relief would not stay the effectiveness of the order.

Despite the “automatic dismissal” language in the order, three days before the extended deadline, counsel moved for another extension listing a myriad of reasons such as other pressing matters, mediator responsibilities and out-of-state business travel. The Court denied as moot the appellant’s second extension request in light of the previous order. On the same day, the appellant moved to reinstate the appeal by citing in part that he was prejudiced by the Court’s delay of seven days in deciding the motion for a second extension. Counsel again cited other pressing matters as his rationale for his inability to file a brief on time.

The Court found that the appellant “demonstrated a persistent indifference” to the Court’s local rules and scheduling orders and denied counsel’s motion to reinstate. The Court noted that the appellant’s reasons for his second extension did not rise to the extraordinary circumstances contemplated by LR 27.1(f)(1) – events such as serious personal illness or death in counsel’s immediate family. Also, counsel did not file his extension requests in a timely fashion – five days before the filing deadline in the first instance and three days before the filing date in the second instance. The Court further noted that counsel’s first extension request “relied on events that had occurred months before the brief’s due date,” referring to Hurricane Sandy, and even before counsel himself selected the filing deadline. Additionally, counsel did not leave a long enough time period to receive a decision on his motion before his respective due dates. As a result, the Court found that counsel demonstrated a lack of familiarity with the Court’s rules as well as the particular language in the scheduling order regarding dismissal. Additionally, the Court noted that the appellant failed to attach a proposed brief or address the merits of the appeal which is part of the analysis on reinstatement motions.

It is apparent that the Second Circuit is adamant about its rules, including those regarding extensions of time, and counsel is to be cognizant of these rules. And it goes without saying that it is imperative for counsel to carefully read orders granting extensions and take note of “automatic dismissal” language.

For a related article about Second Circuit deadlines, recently published by New York Law Journal, please use the following link: Circuit Restates 'Hard Line' Policy on Missed Deadlines for Appeals.

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Tagged: Appellate Practice, United States Court of Appeals for the Second Circuit, Appellate Procedure, Appellate Services