The United States Court of Appeals for the Second Circuit, in Communications Network Int’l, Ltd. v. MCI WorldCom Communications, Inc., a 2-1 decision issued on January 24, dismissed an appeal as untimely because the putative appellant’s lawyer failed to update his email address in the district court’s ECF system when he changed firms. There’s an important lesson about diligence for all lawyers in this.

The district court (SDNY) entered judgment on September 24, 2010, so the deadline to file a notice of appeal was October 24. The clerk entered the judgment on the electronic docket, and notice was automatically sent to counsel, complying with the clerk’s duty under Fed. R. Civ. P. 77(d) to “serve notice” of the entry on the parties. Unfortunately for the losing party, the email address on file in the ECF system for its Philadelphia lawyer (from an earlier, unrelated case) was from a prior firm, and he had not updated it, as the ECF rules require.

The losing lawyer learned of the judgment on or shortly before November 9, when he filed a notice of appeal (and updated his ECF address). When the putative appellee moved to dismiss the appeal as untimely, the appellant’s lawyer asked the district court, under Fed. R. App. P. 4(a)(6), to reopen the time to appeal. That rule, adopted in 1991 for the purpose of “permit[ting] district courts to ease strict sanctions…imposed on appellants whose notices of appeal are filed late because of their failure to receive notice of entry of a judgment” (Adv. Comm. Note to Amdt. to Rule 77(d)), requires the appellant to show three things:

  • that it “did not receive” a Rule 77(d) notice within 21 days of entry;
  • that its motion to reopen was filed within 14 days of receiving that notice or within 180 days after entry of judgment, whichever is later; and
  • that no party will be prejudiced.

The district court found that all these requirements were met and granted the motion. After agreeing with the Seventh Circuit’s recent decision in Khor Chin Lim v. Courtcall Inc., 683 F.3d 378 (7th Cir. 2012), that “effective service of notice” under Rule 77(d) is not enough to obviate a finding that the party “did not receive” that notice, the Second Circuit accepted the district court’s finding that all the elements for relief under Rule 4(a)(6) were met.

Nevertheless, the court of appeals reversed the order reopening the time to appeal for abuse of discretion and dismissed the appeal as untimely. The abuse of discretion consisted of the district court’s failure to recognize that (as the court of appeals put it) “failure to receive Civil Rule 77(d) notice was entirely and indefensibly a problem of [appellant’s] counsel’s making, and Rule 4(a)(6) was not designed to reward such negligence.” (Slip Op. 21.)

The result seems harsh, and other courts of appeals might not see things the same way. But the Second Circuit did, and there is no way of being sure that other courts will not read the rule the same way. So counsel must make sure that their email address is current in all the ECF systems in which they are registered, must read their mail (the lesson of Khor Chin Lim), and must remember, even more basically, their continuing duty “to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal.” (Slip Op. 23.)