REVISED June 8, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
June 3, 2009
No. 08-30025
Charles R. Fulbruge III
Clerk
ELIZABETH KINSLEY, M.D.
Plaintiff-Appellant
v.
LAKEVIEW REGIONAL MEDICAL CENTER LLC; MAX LAUDERDALE
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JONES, Chief Judge, and KING and ELROD, Circuit Judges.
EDITH H. JONES, Chief Judge:
Appellant, Dr. Elizabeth Kinsley, alleged state law claims against
Lakeview Regional Medical Center (“Lakeview”) and its CEO Max Lauderdale
because in 2001, Lakeview refused to sell her a plot of undeveloped land suitable
for the expansion of her medical office. We do not dwell further on the back-
ground of the case because, as Appellees contend, this appeal must be dismissed
as untimely.
The district court granted Appellees’ motion to dismiss for failure to state
a claim on November 29, 2007. According to the rules of appellate procedure,
No. 08-30025
Dr. Kinsley’s notice of appeal was due on December 31, thirty days after the
district court’s final judgment.1 On December 26, Dr. Kinsley filed a document
with the district court that purported to be a notice of appeal, but the entry on
the court’s electronic docket sheet for that day instead contains a Request For
Oral Argument that was identical to a pleading she filed on September 11, 2007,
seeking a hearing on the motion to dismiss. The December 26 docket entry
describes Dr. Kinsley’s notice of appeal as “deficient.” On January 2, 2008, the
docket sheet shows that Dr. Kinsley re-filed a sufficient notice of appeal after
having filed another deficient notice—actually, the same Request For Oral
Argument, according to the docket sheet—earlier that same day.
The filing of a timely notice of appeal, within thirty days after entry of the
court’s judgment, is mandatory and jurisdictional. See Bowles v. Russell,
551 U.S. 205, 214, 127 S. Ct. 2360, 2366 (2007); 28 U.S.C. § 2107(a);
F.R.A.P. 4(a)(1)(A)(“in a civil case . . . the notice of appeal must be filed with the
district clerk within thirty days after the judgment . . . appealed from is
entered.”). Two questions arise from the foregoing circumstances. The first
question is whether Dr. Kinsley’s initial filing was sufficient and timely. If it
was not, was the December 31 deadline extended in any way, thus rendering
timely her ultimately sufficient January 2nd notice of appeal?
Dr. Kinsley asserts that the untimeliness argument is unfounded because
her notice of appeal was delivered to the district court clerk’s office by hand on
December 26. Attached to her letter brief are a copy of the document that was
purportedly filed on December 26 (which is not the document described above),
copies of the receipt for the $455.00 filing fee, and a copy of the docket sheet
containing the deficiency notice previously described. That notice adds:
1
The thirtieth day after the final judgment issued on November 29, 2007, was
Saturday, December 29, 2007. See F.R.A.P. 26(a) (extending the filing period if the last day
of the period if it falls on a Saturday or Sunday).
2
No. 08-30025
Attention: document must be refiled in its entirety within five (5)
working days. Otherwise, it may be stricken by the court without
further notice. Deficiency remedy due by 1/4/2008.
Unfortunately, Dr. Kinsley attaches no affidavit, nor formal proof of filing a
proper notice of appeal, nor circumstantial evidence supporting the contention
that a sufficient notice of appeal was actually filed on December 26. See
Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 293 (5th Cir. 2007) (holding
that the Appellant bears the burden of establishing this court’s appellate
jurisdiction). There is, for instance, no proof that Appellees received a copy of
a notice of appeal dated December 26. Lacking any such proof, we cannot find
that she did file a timely and sufficient notice of appeal. Compare Green v.
Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 652-53, n.3 (5th Cir. 2002) (“Tulane
has provided this court with an affidavit confirming that it filed its motion for
judgment as a matter of law on December 22, 2000.”), abrogated on other
grounds by Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Alternatively, Dr. Kinsley urges that the Request For Oral Argument filed
on December 26 substantially complied with F.R.A.P. 3(c)(1), which identifies the
minimum prerequisites for a sufficient notice. Pursuant to the rule, a notice of
appeal must specify the party or parties taking the appeal; designate the
judgment, order, or part thereof being appealed; and name the court to which the
appeal is taken. See, e.g., Garcia v. Wash, 20 F.3d 608, 610 (5th Cir. 1994).
Rule 3(c)(4) emphasizes that “[a]n appeal must not be dismissed for informality
of form or title of the notice of appeal, or for failure to name a party whose intent
to appeal is otherwise clear from the notice.” See Turnbull v. United States,
929 F.2d 173, 176-77 (5th Cir. 1991) (affording liberal construction of Rule 3(c)
where the intent to appeal is apparent and there is no prejudice to the adverse
party). According to the Supreme Court, however, “this principle of liberal
construction does not, however, excuse noncompliance with the Rule” and
3
No. 08-30025
because “the purpose of [Rule 3] is to ensure that the filing provides sufficient
notice to other parties and the courts,” “the notice afforded by the document, not
litigant’s motivation in filing it, determines the document’s sufficiency as a
notice of appeal.” Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 682 (1992).
The Request For Oral Argument meets only one of Rule 3(c)’s requirements: It
names the parties. It does not designate the judgment appealed from or name
the court to which appeal is taken. Dr. Kinsley has cited, and we have found, no
cases in which an evidently misfiled document, which is baldly noncompliant
with Rule 3(c), has been deemed even under liberal construction to be sufficient.
Because no sufficient and timely notice of appeal was filed, Dr. Kinsley’s
last hope resides in the caveat to the district court’s deficiency notice, which
informs an electronic filer that the “document must be refiled in its entirety
within five (5) working days.” Were it effective, this addendum would render
timely her January 2 notice of appeal. This response was apparently generated
in accordance with the local rules for electronic filing of the Eastern District of
Louisiana, which states regarding “Errors and Deficiencies”:
Electronically submitted documents deemed deficient for failure to
comply with the Federal Rules and the Local Rules of this Court will
be noted as such by the Clerk’s Office. The court will enter a Notice
of Deficient Filing which will be noticed to all parties. A document
deemed deficient must be re-filed within five working days,
otherwise it may be stricken without further notice.
Dr. Kinsley’s argument, however, would elevate the local rule over the
federal rules governing the filing deadline for a notice of appeal. “Local rules
have the force of law, as long as they do not conflict with a rule prescribed by the
Supreme Court, Congress, or the Constitution.” Contino v. United States,
535 F.3d 124, 126 (2d Cir. 2008). The appeal period of 28 U.S.C. § 2107(a) and
Rule 4(a)(1) of the Federal Rules of Appellate Procedure is unquestionably
mandatory and jurisdictional, see Bowles, 551 U.S. at 209, 127 S. Ct. at 2363.
Further, the federal rules themselves provide a mechanism for obtaining an
4
No. 08-30025
extension of the notice of appeal deadline by the filing of a motion based on
F.R.A.P. 4(a)(5)—a mechanism Dr. Kinsley did not utilize. Nor can it be said
that application of the local rule amounted to an implicit Rule 4(a)(5) extension.
Finally, construing this rule in light of Rule 3 of the Eastern District’s
Administrative Procedures For Electronic Case Filing further suggests that the
electronic filing rule does not affect a filing deadline. Local Rule 3 explicitly
states that “[f]iling a document electronically does not alter the filing deadline
for that document.”
Because Dr. Kinsley’s timely filing was not sufficient as a notice of appeal,
and her sufficient notice of appeal was not timely, we are constrained to dismiss
the appeal.
DISMISSED.
5