Lawyers Appeal From Sanctions Order Too Late – Appeal Dismissed

Feldman v. OLIN CORPORATION, Court of Appeals, 7th Circuit 2012 – Google Scholar.

Certain lawyers were sanctioned by the district court.  The sanctions award was set forth in a memorandum opinion, not a judgment order.  The lawyers made the mistake of waiting several months after the order was entered to appeal and the appeal was dismissed.

Judge Posner summarizes the procedural history as follows:

“The day before the plaintiff’s notice of appeal (on another issue) was filed, Global informed the district court that its attorneys’ fees had been $1,475. Two months later, on February 22, 2011, the judge approved the amount requested by Global and ordered the plaintiff’s lawyers— the present appellants—to pay, thus relieving the plaintiff of the obligation imposed by the previous order. The approval of the amount, and the order that the lawyers rather than the plaintiff pay it, were in the form of a “memorandum and order”; there was no separate judgment document.

The lawyers (who alone could appeal from an order directed against them, Halim v. Great Gatsby’s Auction Gallery, Inc., 516 F.3d 557, 564 (7th Cir. 2008)) filed a notice of appeal from the February 22 order on August 3, 2011. That was long after the expiration of the 30-day deadline to appeal a civil case. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). Global asks us to dismiss the appeal as untimely. In response the plaintiff’s lawyers argue that because no separate judgment document ordering them to pay Global’s attorneys’ fees was ever entered, the order of February 22 did not become final for 150 days after the date on which that order was entered in the district court’s docket, and the notice of appeal was filed within 30 days after the 150th day.”

Comment: if there is any doubt file the appeal within 30 days of the order.  With appeals, you can be early (and get dismissed) and then refile.  This is much better than losing the appeal.

Edward X. Clinton, Jr.

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