By Louis J. Manetti

Attorney, Codilis and Associates, PC

The Seventh Circuit recently broadened a prior holding and stated that, under a federal standard of finality, foreclosure judgments are not final and appealable orders. In Bank of America, N.A. v. Martinson, 2016 U.S. App. LEXIS 12402, *1, the bank filed a foreclosure action in Wisconsin, and the borrowers removed the case to federal court. The federal district court entered judgment in the bank’s favor, and the order provided for a sheriff’s sale after the borrowers’ time to redeem the property expired. Id. The borrowers appealed the judgment order to the Seventh Circuit. Id.

The Seventh Circuit began the opinion by considering its jurisdiction. It noted that, in HSBC Bank USA, N.A. v. Townsend, 793 F. 3d 771, 777-78 (7th Cir. 2015), it held that Illinois foreclosure judgments were not final orders. The Townsendmajority reasoned that Illinois foreclosure judgments were not final because the order did not resolve all the issues in the lawsuit. Specifically: (1) the owner retained statutory rights to redeem the property before the sale; (2) a judicial sale would still need to be confirmed in a further court proceeding; and (3) the court would still need to decide the amount of deficiency, if any. Id. at 775-77. The Seventh Circuit held that Townsend controlled the issue of appellate jurisdiction, and it was not material that the bank in this case was not seeking a deficiency. Martinson, 2016 U.S. App. LEXIS 12402 at *5.

The Seventh Circuit then had to resolve another difference between the present case and Townsend. The outcome in Townsend, 793 F. 3d at 777, resulted from the court’s holding that, under Illinois law, foreclosure judgments are not final and generally cannot be appealed until the sale is confirmed. But this case was different—it involved an appeal regarding a Wisconsin foreclosure judgment, and the court acknowledged that Wisconsin courts invariably treat foreclosure judgments as final and appealable orders. Martinson, 2016 U.S. App. LEXIS 12402 at *5-6; see also Anchor Sav. & Loan v. Coyle, 148 Wis. 2d 94, 100-01 (“[T]he judgment of foreclosure and sale disposes of the entire matter in litigation and is a final judgment as a matter of right . . . . [t]he proceedings after the judgment . . . are analogous to the execution of a judgment and simply enforce the parties’ rights which have been adjudicated[.]”).

Despite Wisconsin law, the Seventh Circuit held that Townsend controlled in this case because Townsend applied a federal standard of finality—“a procedural issue governed by federal law.” Martinson, 2016 U.S. LEXIS 12402 at *6 (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988)). Congress’s use of “final decisions” in section 1291 did not mean to incorporate state law, and a “final decision” in federal court is one “which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Budinich, 486 U.S. at 199.

The Seventh Circuit acknowledged that it would create a significant “and potentially treacherous” difference between state and federal forums if it held that a Wisconsin state court foreclosure judgment was an appealable order but a Wisconsin federal district court judgment was not. However, it reasoned that, if it did not follow Townsend and apply a federal standard of finality, it would create an in-circuit conflict about federal procedural law, and the more palatable option was to be consistent in applying federal procedure “and to accept the inevitable potential for confusion based on the difference between federal and state procedure in such cases.” Martinson, 2016 U.S. LEXIS 12402 at *6.

As a result, the court held that Townsend’s application of a federal standard of finality is binding in the Seventh Circuit, decided that the foreclosure judgment in this case was not a final order, and dismissed the appeal for lack of jurisdiction.

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal, previewing the United States Supreme Court new term, which began on October 3.

 

Initially, Chemerinsky noted that, for the first time in 30 years, the Court will begin its new term with only eight justices. He also discussed the possibility that the Court goes the entire term without having a ninth justice, observing that if Donald Trump were to be elected president, “hearings would not likely be held until spring” and if Hillary Clinton were to be elected president, various possibilities exists including nominating someone other than Merrick Garland.

 

Chemerinsky divided the Court's new term into three major areas of law: race discrimination, criminal justice and constitutional rights.

 

Among the race discrimination cases is Pena-Rodriguez v. Colorado, which “concerns whether a jury verdict can be reconsidered after it is learned that one of the jurors expressed racial bias during deliberations.” Additionally, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris concern “the use of race in drawing election districts.”

 

Among the criminal justice cases is Moore v. Texas, which concerns how to determine “whether a person is intellectually disabled and thus cannot be executed.”

 

Finally, among the constitutional rights cases is Trinity Lutheran Church of Columbia v. Pauley, which concerns “whether a state may deny aid to parochial schools that it provides to public and secular private schools in the state.” Additional, in Murr v. Wisconsin, the Court discuss “how to determine what constitutes a parcel of land for purposes of the takings clause of the Fifth Amendment.”

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On October 6, 2016, the Illinois Supreme Court entered an order amending various rules that govern appellate practice and procedure. The amendments, which become effective on November 1, 2016, are:

Rule 12: Governing proof of service in trial and reviewing courts, amended Rule 12 now allows proof of service to be established by a certificate of “the person, as provided in section 1-109 of the Code of Civil Procedure” who delivered, deposited, faxed, or e-mailed the document. Language requiring non-attorneys to establish proof of service by an affidavit has been stricken.

Rule 307(a): Rule 307(a) governs interlocutory appeals as of right. The amendments clarify that, when such an appeal is filed, a supporting record pursuant to Rule 328 must be filed within the same 30-day period as filing the notice of appeal, unless the timeframe for filing the supporting record is extended by the Appellate Court. However, the amendments clarify that a Rule 328 supporting record “shall not” be filed in cases arising under the Juvenile Court Act. In those cases, a record pursuant to Rule 323 must be filed. The amendments also incorporate Rule 328 language into subsections (b) and (c).

Rule 307(d): Rule 307(d) governs appeals from temporary restraining orders. Pursuant to the amendments, Rule 307(d)(1) provides that documents to be filed with the Appellate Court may be filed by mail in accordance with Rule 373, but only if those documents are sent by overnight delivery. Relatedly, subsection (d)(2)—governing the legal memoranda in an appeal from a temporary restraining order—now provides that documents may be served on the other party personally, by facsimile, or e-mail. Moreover, the legal memoranda may be filed with the Appellate Court by mail pursuant to Rule 373 so long as it is sent by overnight delivery.

Rule 373: Rule 373 governs the date of filing of papers in the reviewing court. Consistent with the amendment to Rule 12, the title of Rule 373 has been amended to strike the currently existing reference to an affidavit. In addition, the body of the rule added language to provide that proof of mailing by a pro se petitioner from a correctional institution shall be established by Rule 12(b)(4).

By John M. Fitzgerald (left), Partner, Tabet DiVito & Rothstein LLC 
Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules. Just this week, the ALA proposed several new amendments to the Illinois Supreme Court Rules that are intended to foster the efficient and speedy resolution of civil appeals. These amendments, which would change certain language in Illinois Supreme Court Rules 306, 308, 315 and 321, have been submitted to the Illinois Supreme Court Rules Committee for its consideration. The proposed amendments, which are discussed below, were authored by ALA Board member Don Sampen and were unanimously approved by the ALA Rules Committee.

I. Proposed Amendment to Illinois Supreme Court Rule 306

The ALA proposes adding a new Rule 306(c)(8), which would provide as follows: 

“After the petitioner has filed the petition and supporting record, and the time for filing any answer has expired, the Appellate Court shall consider and decide the petition within 30 days thereafter.”

 

The purpose of this amendment is to set forth a reasonable time within which the Illinois Appellate Court shall decide whether or not to accept a petition for leave to appeal from one of the types of orders described in Rule 306(a). Importantly, this amendment would not require the Illinois Appellate Court to render any decision on the merits of any such appeal within 30 days. It would set a timeframe only on the Illinois Appellate Court’s decision whether to grant a petition for leave to appeal. This amendment is intended to provide certainty and predictability as to when a petitioner or respondent should expect a decision to be made as to whether an interlocutory appeal will proceed.

II. Proposed Amendment to Illinois Supreme Court Rule 308

 

The ALA proposes adding a new Rule 308(f), which would provide as follows:

 

“After the applicant has filed the application and supporting record, and the time for filing any answer has expired, the Appellate Court shall consider and decide the application within 30 days thereafter.”

 

Like the proposed amendment to Rule 306, this proposed amendment is intended to set forth a reasonable time within which the Illinois Appellate Court shall decide whether or not to accept a Rule 308 application for leave to appeal. This amendment would thereby provide certainty as to when such a decision will be made. This language, of course, would not require the Illinois Appellate Court to decide the merits of any Rule 308 appeal within any set timeframe.

 

III. Proposed Amendment to Illinois Supreme Court Rule 315

 

The ALA proposes amending Supreme Court Rule 315(f) to delete the phrase “within such 21-day period” from the end of the first sentence of that provision. As amended, the first sentence of Rule 315(f) would read:

 

“The respondent need not but may file an answer, with proof of service, within 21 days after the expiration of the time for the filing of the petition, or within such further time as the Supreme Court or a judge thereof may grant within such 21-day period.”

 

The rationale for this proposal is that, in many instances, 21 days may be too short a period of time in which to file a motion for an extension of the filing deadline and receive a ruling on that motion, especially if an extension is necessitated by an unforeseen occurrence.

 

IV. Proposed Amendment to Illinois Supreme Court Rule 321

 

The ALA proposes adding this underscored language to Supreme Court Rule 321:

 

“The common law record includes every document filed, including compact disks and other electronic filings, and judgment and order entered in the cause and any documentary exhibits offered and filed by any party.”

 

This amendment is intended simply to clarify that the common law record in a given case may include not only paper documents but also electronic filings. If a party was permitted to file a document in electronic format in the circuit court, that fact should not provide a basis for excluding it from the common law record.

 

Conclusion

 

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules that are intended to promote fairness and efficiency in the appellate process. The ALA appreciates the Illinois Supreme Court Rules Committee’s consideration of these proposed amendments to the Illinois Supreme Court Rules. Any ALA members who have ideas for amending the Illinois Supreme Court Rules are encouraged to contact the co-chairs of the ALA Rules Committee, John Fitzgerald and Garrett Boehm.

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On September 12, 2016, the ALA began a new bar year by sponsoring a luncheon at the Union League Club in Chicago featuring the Clerks of each of the five Illinois Appellate Court districts. ALA President Joanne R. Driscoll opened the program by welcoming ALA members and guests, which included many justices from the Illinois Appellate Court as well as new Illinois Solicitor General David L. Franklin.

Thereafter, President Driscoll introduced the Clerks—Steven M. Ravid of the First District; Robert J. Mangan of the Second District; Barbara Trumbo of the Third District; Carla Bender of the Fourth District; and John J. Flood of the Fifth District. The speakers provided an update on the Appellate Court’s transition to e-filing and also provided district-specific practice pointers.

Regarding e-filing, the Clerks noted that the system, while moving slowly, is gradually being implemented as all circuit courts in the Second District use e-filing, along with two circuit courts in the Third District, three in the Fourth District, and one in the Fifth District. Despite feeling a “bit rushed,” the Clerks assured the audience that their respective offices are working with Tyler Technologies, Inc., to implement a state-wide e-filing system as seamlessly as possible.

The Clerks proceeded to provide practice pointers for the audience. For example, Clerk Ravid noted that, if a party files a motion seeking an extension within the First District, the party should specify the date to which the extension is sought. In addition, if an appeal involves multiple appellees, the parties should advise the Clerk whether more than one appellee brief will be filed so as to reduce delay.

For the Second District, Clerk Mangan advised against mailing emergency motions. And, if a party desires an oral argument, it may file a motion under Illinois Supreme Court Rule 352 (eff. Feb. 6, 2013), while Clerk Bender noted that oral argument is usually given when requested in the Fourth District. Clerk Trumbo helpfully advised litigants in the Third District to avoid using plastic covers on briefs, as her office removes them. Finally, Clerk Flood reminded litigants that, if a party has a conflict with a scheduled oral argument, it should advise his office as soon as possible, as rescheduling an argument that has already been set can be administratively challenging.

The ALA thanks the Clerks for their engaging and informative presentation. 

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On October 04, 2016, the ALA, in conjunction with the Cook County Bar Association, will host a business development and networking program featuring Steve Fretzin, a business development and networking expert. Fretzin is the author of Sales-Free Selling: The Death of Sales and the Rise of a New Methodology and The Attorney’s Networking Handbook, and a contributing writer for the National Law Review and the Chicago Daily Law Bulletin.

Fretzin’s presentation will focus on the best strategies for attorneys to grow their practices, including the use of LinkedIn and the more traditional networking event. The program will be held at the Union League Club in Chicago and run from noon t0 1:30 p.m. Attendees will receive one hour of MCLE credit.

The following day, October 5, 2016, the ALA, in conjunction with the Champaign County Bar Association, will host an Appellate Practice Seminar featuring the justices of the Illinois Appellate Court, Fourth District. Prior to the seminar, a luncheon honoring the justices will be held. The luncheon is open to seminar attendees, but requires an additional cost. The seminar will focus on such topics as preserving matters for appeal during post-judgment proceedings and feature a judicial panel of the Fourth District justices. Seminar attendees will also have the opportunity to ask questions.

The luncheon and seminar will take place at the University of Illinois College of Law. The luncheon begins at 12:30 p.m. and runs until 1:30 p.m. The seminar begins at 1:45 p.m. and concludes at 4:30 p.m. Attendees will receive 2.5 hours of MCLE credit.

For more information and to register for either event, please click here.

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP
 
In Construction & General Laborers’Local Union No. 330 v. Town of Grand Chute, Wisconsin, No. 15-1932, 2016 WL 4410073 (7th Cir. Aug. 19, 2016), the Seventh Circuit Court of Appeals confronted a labor union’s First Amendment challenge to a town ordinance in Grand Chute, Wisconsin, which, as construed and applied, prohibited the display of giant inflatable rats and cats used by unions during wage disputes to the extent they were “staked to the ground on the public way.”  2016 WL 4410073, at *1. 

In the district court, the union had moved for a preliminary injunction, which the court denied, and then entered summary judgment for the defendant town. Id. The union appealed. Id. However, without resolving the merits of the appeal, the Seventh Circuit reversed and remanded for a determination as to whether the union’s claim was moot, since the union had not requested an award of damages. Id. at *1-2.

Whether the dispute was moot was an issue that neither the parties nor the district court had considered. Id. at *1. As the Seventh Circuit noted in its opinion, however, by the time the district court entered summary judgment, the construction project that led to the use of the demonstrative rats and cats had been completed and the union was no longer picketing. Id. Also complicating the mootness analysis was the fact that the language of the ordinance had changed between the district court’s denial of the union’s motion for preliminary injunction and the entry of summary judgment. Id. at *2.

As the Seventh Circuit put it, “[w]e cannot decide this suit on the merits without being confident that we have a justiciable controversy.” Id. at *2. A controversy is still considered “live” if it is capable of repetition. Id. at *1-2. For a case to remain live because it is capable of repetition, the Court clarified, “there must be ‘a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Id. at *1 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Despite counsel for the union’s statement at oral argument that a dispute “might crop up again” if the union decides to demonstrate against a future construction project, the Court found that the record failed to contain any information about this likelihood. 2016 WL 4410073, at *1. 

The Court further noted that, even if such a construction project in Grand Chute is built and a labor dispute arises, this particular suit may still be moot “if the controversy about that future project would not evade review.” Id. The Court continued, “Labor disputes are often short-term affairs, but many are long-lived,” and only the possibility of damages – which the union did not seek in this case – keeps a case alive when the project and resulting dispute have ended. Id.

Remanding for the district court to “take another look at it,” the Seventh Circuit explained: “If the Union persists in abjuring damages, the district court must determine whether the probability of a fresh dispute between this union and Grand Chute is high enough—and the risk that it would be over too quickly to allow judicial review also high enough—to satisfy the ‘capable of repetition yet evading review’ proviso to the mootness doctrine.” Id. at *2. The Court also instructed the district court to address the validity of the town’s current ordinances, rather than the version that was changed before the entry of summary judgment. Id.

Justice Posner authored both a concurrence and a dissent, observing that “[a]ppellate courts should try to make the first appeal in a case the last and order a remand only when the need for further proceedings at the trial level is imperative.” Id. at *4 (Posner, J., concurring and dissenting). In Justice Posner’s opinion, the balance of the evidence was “clear enough” to justify a decision that the union’s constitutional right of free speech was violated. Id.

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s September Term that began Monday, September 12, 2016, with oral arguments scheduled for September 13, 14, and 15 and September 20, 21 and 22, 2016. A total of 21 cases will be heard – 11 civil and 10 criminal. Here are the civil cases with the dates of oral argument:

In re M.I., a Minor—No. 120232—September 14

 

Schweihs v. Chase Home Finance, LLC—No. 120041—September 15

 

Wardwell v. Union Pacific Railroad Co. —No. 120438—September 15

 

The Hertz Corp. v. City of Chicago—No. 119945, 119960—September 20

 

Bueker v. Madison County—No. 120024—September 20

 

Beggs v. Board of Education of Murphysboro Community Unit School District No. 186—No. 120236—September 21

 

Blanchard v. Berrios—No. 120315—September 21

 

Murphy-Hylton v. Lieberman Management Services, Inc. —No. 120394—September 21

 

Zahn v. North American Power & Gas, LLC—No. 120526—September 21

 

Village of Bartonville v. Lopez—No. 120643—September 22

 

Grimm v. Calica—No. 120105—September 22

 

Below are abbreviated summaries for two of these cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website.

TORTS – FEDERAL EMPLOYERS’ LIABILITY ACT

No. 120438

Christopher Wardwell v. Union Pacific Railroad Company

This petition raises the question of whether a defendant railroad may, under the Federal Employers’ Liability Act (“FELA”), offer evidence at trial that a third party was the sole cause of a plaintiff’s injury. Under FELA, a railroad employer is deemed fully liable for all of a plaintiff’s injuries if any of those injuries were sustained as a result of a defendant’s negligence, regardless of the comparative fault of other parties.

 

In the proceedings below, Plaintiff Christopher Wardwell, an employee of Defendant Union Pacific Railroad (“UPRR”), sustained injuries after being struck by a drunk driver while riding as a passenger in a vehicle operated by a UPRR-contracted driver. Plaintiff contended that because the driver of the vehicle – indisputably an agent of UPRR – acted negligently by failing to check the vehicle’s blind spots prior to the accident, UPRR should be held fully liable for his injuries, notwithstanding the actions of the drunk driver.

 

UPRR took the position at trial that the drunk driver’s actions were the sole cause of Plaintiff’s injuries such that no liability could be imposed on it under FELA. The jury agreed and returned a verdict in favor of UPRR. Plaintiff’s post-trial motion was denied and he appealed.

 

Reversing, two justices of the Fifth District Appellate Court concluded that because the jury was presented with some evidence that UPRR acted negligently, the jury verdict was in error. Specifically, the appellate court held that in a FELA action involving a railroad, evidence of a third party’s negligence is inadmissible where there is circumstantial evidence establishing that the railroad contributed to the injury.

 

ppellate Court Decision: 2016 IL App (5th) 140461. Goldenhersh, J., with Stewart, J., concurring and Moore, J., dissenting.

STATUTORY IMMUNITY – SNOW AND ICE REMOVAL ACT

No. 120394
Murphy-Hylton v. Lieberman Management Services, Inc.

This issue in this case concerns the scope of the immunity provided under the Snow and Ice Removal Act, 745 ILCS 75/1, et seq. (“the Act”). The Act immunizes property owners and maintenance companies from negligence claims arising out of personal injuries caused by the snowy or icy condition of a sidewalk.

On February 18, 2011, Plaintiff Pamela Murphy-Hylton (“Murphy-Hylton”) slipped and fell while walking on the sidewalk outside of her condominium in Carol Stream. Murphy-Hylton sued Lieberman Management Services, Inc. (“Lieberman”), the management company responsible for maintaining the common areas of the property, and Klein Creek Condominium (“Klein”), alleging that negligent landscaping design or maintenance created an unnatural accumulation of ice and snow which caused her injury. Murphy-Hylton did not allege that Lieberman or Klein negligently attempted to remove natural accumulations of snow and ice on the property. Lieberman and Klein moved for summary judgment arguing that, under the Act, they were entitled to immunity. The circuit court agreed and granted summary judgment for Lieberman and Klein.

The Illinois Appellate Court reversed. The court held that the Act protects property owners from allegations of negligence arising out of acts or omissions in actual snow removal efforts. However, the Act does not protect property owners from allegations of negligence arising out of negligent maintenance, defective design, or defective construction. In this case, Murphy-Hylton alleged that she was injured as a result of an unnatural accumulation of snow and ice and that Lieberman and Klein had notice of property defects which created the unnatural accumulation. Murphy-Hylton did not allege negligence in actual snow removal efforts. Therefore, the court concluded, the Act did not apply and Lieberman and Klein were not entitled to immunity.

Appellate Court Decision: 2015 IL App (1st) 142804. Connors, J. with Liu, P.J., and Cunningham, J., concurring.

By Kevin R. Malloy
Partner, Forde Law Offices LLP

In Federal Court, one cannot simply rely upon a district court granting an extended deadline in which to file a notice of appeal. You had better check and make sure the extension is within the time limit set forth in Federal Rule of Appellate Procedure 4(a)(3)(C). The Seventh Circuit’s decision in Hamer v. Neighborhood Housing Services of Chicago, No. 15-3764, 2016 WL 4536523 (7th Cir. Aug. 31, 2016), shows that the consequences of failing to do so can be fatal to your appeal.

In Hamer, the plaintiff, Charmaine Hamer, lost on summary judgment, and her original deadline in which to file a notice of appeal was October 14, 2015. On October 8, her counsel filed a “Motion to Withdraw and to Extend Deadline for Filing Notice of Appeal.” The district court granted the motion and extended the deadline by 61 days to December 14. Hamer filed her notice of appeal on December 11. Even though Hamer filed her notice of appeal three days earlier than the extended deadline ordered by the district court, the Seventh Circuit held that the notice was filed too late and dismissed the appeal. Id. at *2.

Timeliness was not raised until the Seventh Circuit sua sponte asked for briefing on the issue. The appellees argued the notice was untimely under Federal Rule of Appellate Procedure 4(a)(5)(C), which states: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” 

Hamer argued, however, that (1) the extension was proper under 28 U.S.C. § 2107(c), which provides that “[t]he district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause,” (2) the district court did not consider Rule 4(a)(5)(C) when it granted the extension and therefore it did not apply; and (3) the appellees waived their timeliness challenge by not initially challenging it. Hamer, 2016 WL 4536523 at *1.

In rejecting Hamer’s arguments and holding her notice of appeal was untimely, the Seventh Circuit cited the Supreme Court’s holding in Bowles v. Russell, 551 U.S. 205 (2007), wherein it held that the statutory requirement for filing a timely notice of appeal is “mandatory and jurisdictional” and explained the relationship between the 30-day statutory filing period set out in § 2107(a) and the district court’s authority to extend that period under § 2107(c) and Federal Rule of Appellate Procedure 4. Hamer, 2016 WL 4536523 at *1. 

In Bowles, the Supreme Court explained that Rule 4 “carries § 2107 into practice,” and in particular, Rule 4(a)(6), which concerns the district court’s authority to reopen and extend the time for filing after the lapse of the usual 30 days, is limited by § 2017(c). Id. (quoting Bowles, 551 U.S. at 208, 213). Since “Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), that limitation is more than a simple ‘claim-processing rule,’” and an “when an ‘appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.’” (Emphasis in original, internal citation omitted.) Id. (quoting Bowles, 551 U.S. at 213).

Using the Bowles analysis, the Seventh Circuit stated “[l]ike Rule 4(a)(6), Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits the district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” Hamer,2016 WL 4536523 at *2. Thus, the district court was in error in granting “an extension that exceeded the Rule 4(a)(5)(C) time period by almost 30 days.” Id. 

The Seventh Circuit acknowledged that Hamer relied upon the district court’s order in thinking she had until December 14, 2015, to file her notice of appeal, but nevertheless noted that it “simply has no authority to excuse the late filing or to create an equitable exception to jurisdictional requirements.” Id.

Finally, the court of appeals rejected Hamer’s waiver argument, since the filing error was one of “jurisdictional magnitude,” and thus could not be waived or forfeited. Id.

Certainly, the equities of this situation favored Hamer. Her former counsel moved for an extension beyond the jurisdictional time limit and the district court erroneously allowed the extension, without any objection from the other side. Hamer met that deadline, but she still was out of luck. Hamer shows that any extensions of a deadline for filing a notice of appeal should be double-checked against the statutory requirement, not just a court’s order.

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On September 12, 2016, the ALA will host a luncheon featuring the clerks of the Illinois Appellate Court: Steven M. Ravid of the First District, Robert J. Mangan of the Second District, Barbara Trumbo of the Third District, Carla Bender of the Fourth District, and John J. Flood of the Fifth District.

At the luncheon, the clerks will provide practice pointers for attorneys as well as provide an update on e-filing in their district. The luncheon will be held at the Union League Club in Chicago and run from noon t0 1:30 p.m. Attendees will receive one hour of MCLE credit.

For more information and to register, please click here.