Federal Rules of Appellate Procedure

I.  You Can’t Have One Without the Other: Notice of Appeal Must Designate Both Final Judgment and Intermediate Order

Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect.  Reason: The notice of appeal identified the intermediate order that the appellant was challenging on appeal, but not the trial court order that converted the case into a final judgment.… Continue Reading

Is there institutional disharmony in the Fourth Circuit? That’s the question that one judge suggested, in a concurring opinion, that lawyers and judges might be asking after an en banc opinion released on Tuesday.  In response, the judge whose dissenting opinion prompted the question submitted that the apparent tension we are witnessing within the Court is simply a “vigorous exchange of views over basic and fundamental principles of law,” and that such a “robust” exchange enhances “mutual respect and collegiality.”… Continue Reading

The federal corollary to the oft-blogged about “substantial right doctrine” in the North Carolina appellate courts is the “collateral order doctrine.”  As is the case under North Carolina law, the jurisdiction of the United States Circuit Courts of Appeals is generally limited to final decisions of the district court.  Therefore,  a federal appellate court ordinarily cannot review interlocutory orders.  But, as in North Carolina, there are exceptions. Continue Reading

On July 10, 2017, Chief Judge Wood of the Seventh Circuit Court of Appeals issued a curious opinion that should serve as a reminder not only to practitioners in that Circuit, but to all attorneys who regularly file documents with a court: local rules exist for a reason.

Judge Wood consolidated two cases, Baez-Sanchez v. Sessions and Bishop v. Air Line Pilots Association, International, in order to issue an opinion addressing litigants’ repeated failure to follow the Seventh Circuit’s local rules regarding jurisdictional statements.… Continue Reading

Since December 2016, we have been monitoring the status of the North Carolina Court of Appeals’ new en banc authority.  Several motions for en banc review have been filed, but to our knowledge, the North Carolina Court of Appeals has not yet accepted a case for en banc review.

Not to be outdone, the Fourth Circuit is generating its own en banc buzz.… Continue Reading

Yesterday, the Court of Appeals published an opinion serving as a reminder that attorneys must always be mindful of preserving their trial court arguments for appeal. In State v. Walker, the Court addressed an appeal from judgments convicting the Defendant of three counts of assault with a deadly weapon with intent to kill inflicting serious injury (acronymed “AWDWWIKISI” in the opinion) and one count of attempted first degree murder. … Continue Reading

Along with changes to the federal civil procedure and bankruptcy rules, the Federal Rules of Appellate Procedure will likely see a significant change in less than a month. Unless Congress decides otherwise, the revisions will provide new page and word count limits for certain filings and clarify which items are to be included in the word count. Importantly, under revised Rule 32, principal briefs will be limited to 13,000 words (rather than 14,000), and reply briefs will be limited to 6,500 words (rather than 7,000).… Continue Reading

There are myriad reasons why, when given the choice, North Carolina litigators might want a case venued in federal court as opposed to state court (and depending on the circumstance, of course, the opposite is also true).  A list of these reasons might not typically include “more options if we lose,” but the reality is that in many instances the federal rules–of both civil and appellate procedure–provide more options to a losing party than the North Carolina rules. … Continue Reading

Most attorneys have had a least one unfavorable final judgment entered before trial.  The attorney may feel that the trial court completely misunderstood her argument. Perhaps the trial court entered a summary judgment order that missed a key appellate case.  Or perhaps the trial court issued a Rule 12(b)(6) dismissal that appeared inconsistent with an earlier ruling.  The natural inclination is to devise a motion that will give the trial court the opportunity to fix its mistakes without having to take an appeal. … Continue Reading

In Chief Judge Gregory’s first published opinion since assuming his new role, the Fourth Circuit indicated yesterday that functional compliance with jurisdictional rules trumps formal compliance.  In Clark v. Cartledge, the Court addressed whether a pro se plaintiff’s filing of a request for an extension of time to request a certificate of appealability qualifies as the notice of appeal required by Rule 3 of the Federal Rules of Appellate Procedure when a formal notice of appeal was not timely filed. … Continue Reading