IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 5, 2009
No. 09-30087 Charles R. Fulbruge III
Clerk
ROBERT CRAIG; CLARENCE E SPOTTSVILLE
Plaintiffs-Appellants
v.
POLICE JURY GRANT PARISH; W C HOLLOWAY, Individually and as a
Member of the Grant Parish Police Jury; JULIUS FRED SCOTT,
Individually and as a Member of the Grant Parish Police Jury, MICHAEL L
BROWN, Individually and as a Member of the Grant Parish Police Jury;
DONNIE BROWN, Individually and as a Member of the Grant Parish Police
Jury; MARVIN DELONG, Individually and as a Member of the Grant Parish
Police Jury; MELVIN E GENE ALLEN, Individually and as a Member of the
Grant Parish Police Jury,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana, Alexandria Division
No. 03-CV-147
Before KING, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants Robert Craig and Clarence E. Spottsville appeal the
dismissal of their procedural due process claims against defendants-appellees,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-30087
the Police Jury of Grant Parish, Louisiana, and its members in their official
capacities. Plaintiffs challenge the Police Jury’s closure of a portion of a public
road that did not abut their properties but that provided a non-exclusive means
of access to their properties. We do not reach the merits of these claims because
this appeal must be dismissed as untimely.
I. Factual and Procedural Background
The district court granted defendants’ motion for summary judgment on
December 1, 2008, and entered final judgment. According to the Federal Rules
of Appellate Procedure, plaintiffs’ notice of appeal was due on December 31,
2008, thirty days after entry of final judgment. F ED. R. A PP. P. 4(a)(1)(A). On
December 22, plaintiffs filed a document with the district court that purported
to be a notice of appeal, but in fact was a June 27, 2008, “Notice of Motion
Setting” that had previously been filed in the case. The docket entry associated
with plaintiffs’ December 22 filing states: “FILED IN ERROR—COUNSEL
ADVISED TO RESUBMIT WITH CORRECT PDF DOCUMENT ATTACHED.”
A subsequent docket entry, also from December 22, states:
NOTICE of Corrective Action to Robert G[.] Nida on behalf of Robert
Craig regarding [80] Notice (Other). Action taken: Modified text of
entry to reflect filed in error—incorrect pdf attached. Counsel
advised to resubmit filing with correct pdf attached. (Entered:
12/22/2008).
On February 5, 2009, plaintiffs filed a sufficient notice of appeal.1
The appellate briefing letter to the parties instructed special briefing on
the following: “Whether the notice of appeal, filed with the District Court on
1
The sufficient notice of appeal also attached, apparently in error, a February 23, 2006,
document titled “Plaintiffs’ Response to Defendants’ Supplemental Request for Production of
Documents.”
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No. 09-30087
February 5, 2009, is timely from the Order entered on December 1, 2008, from
which the appeal is taken.”
Plaintiffs did not address the timeliness issue in their opening appeal brief
but did address the issue in their reply brief. Plaintiffs explain that on
December 22, a paralegal inadvertently filed a copy of the June 27, 2008, Notice
of Motion Setting in lieu of the notice of appeal that counsel had intended to file.
Plaintiffs attach to their reply brief a copy of a December 22 email that
they contend their counsel received through the district court’s electronic filing
system after the misfiling. The email stated:
CASE: 1:03-CV-0147
CASE NAME: Craig, et al v. Grant Parish, et al
DOCUMENT NUMBER: 80
EVENT USED: Notice (Other)
EVENT WHICH SHOULD HAVE BEEN USED: Notice of Appeal
We are in receipt of the electronic filing in this case. The event to
use which is referenced above would have been more appropriate for
this filing. We have edited the text of the previous docket entry and
no further action regarding this submission is required at this time.
To assist with electronic filing, please utilize the Search feature, on
the blue CM/ECF menu bar.
Plaintiffs assert that they relied on this email as evidence that: the only
issue with their filing was their characterization of the filing on the electronic
filing system as a “NOTICE” rather than a “NOTICE OF APPEAL”; the district
court understood that their filing was intended as a notice of appeal; and no
further action on their part would be required. Plaintiffs also contend that they
did not receive any other notice that their filing was deficient and did not realize
the deficiency until they inquired as to why they had not received a request from
the district court to post fees in connection with the appeal. Plaintiffs claim that
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they “promptly” filed sufficient notice of appeal on February 5, 2009, after they
discovered the error.
II. Discussion
The filing of a timely notice of appeal is mandatory and jurisdictional. See
Bowles v. Russell, 551 U.S. 205, 214 (2007). In a civil case in which the United
States is not a party, notice must be given within thirty days after entry of the
court’s judgment. 28 U.S.C. § 2107; F ED. R. A PP. P. 4(a)(1)(A) (“[I]n a civil
case . . . the notice of appeal . . . must be filed with the district clerk within thirty
days after the judgment or order appealed from is entered.”). The issues
presented are whether plaintiffs’ timely, December 22, 2008, filing was
sufficient, and if not, whether the sufficient, February 5, 2009, filing was timely.
While this appeal was pending, we addressed a substantially similar set
of issues in Kinsley v. Lakeview Regional Medical Center LLC, 570 F.3d 586 (5th
Cir. 2009), and dismissed the plaintiff’s appeal as untimely. In Kinsley, as here,
the plaintiff inadvertently filed a different case document instead of the intended
notice of appeal. That filing was within the deadline specified by Rule 4(a)(1)(A)
but did not have the necessary contents of a notice of appeal. Id. at 589. The
plaintiff did not file a corrected filing until after the thirty-day deadline had
lapsed. There, as here, the plaintiff contended that she had relied on
representations from the district court’s electronic filing system in concluding
that her appeal was timely. Id. at 589–590. As discussed below, Kinsley controls
and plaintiffs’ appeal must be dismissed as untimely.
1. The December 22 Notice was Not Sufficient
Federal Rule of Appellate Procedure 3(c)(1) identifies the minimum
requirements for a sufficient notice of appeal. Under that Rule, a notice of
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No. 09-30087
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. F ED. R. A PP. P. 3(c)(1); see also Garcia v. Wash, 20 F.3d 608, 610
(5th Cir. 1994). Rule 3(c)(4) provides 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.” F ED. R. A PP. P.
3(c)(4); see also Turnbull v. United States, 929 F.2d 173, 176–77 (5th Cir. 1991)
(stating that Rule 3(c) should be liberally construed where the intent to appeal
is apparent and there is no prejudice to the adverse party). But “this principle
of liberal construction does not . . . excuse noncompliance with the Rule.” Smith
v. Barry, 502 U.S. 244, 248 (1992). 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 the litigant’s motivation in filing it,
determines the document’s sufficiency as a notice of appeal.” Id.
Plaintiffs contend that because they received an electronic notification on
December 22 stating that their “Notice” should have been filed as a “Notice of
Appeal,” “the district court plainly recognized that the submission was intended
to be a notice of appeal.” But the appropriate inquiry is not whether the court
interpreted the document as a notice of appeal, but whether the document
satisfied the requirements of Rule 3(c), which are “jurisdictional in nature.” Id.
at 248. In Kinsley, we observed:
The [misfiled document] 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
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No. 09-30087
Rule 3(c), has been deemed even under liberal
construction to be sufficient.
570 F.3d at 589. As in Kinsley, the Notice of Motion Setting that plaintiffs
inadvertently filed on December 22, 2008, identifies the parties but does not
otherwise fulfill the requirements of Rule 3(c). The inadvertently-filed document
was not a sufficient notice of appeal.
2. The February 5 Notice was Not Timely
Plaintiffs also argue that they should be excused because the December 22
electronic notice they received stating that their “Notice” should have been filed
as a “Notice of Appeal” but that “no further action . . . [wa]s required” led them
to believe that their filing was sufficient, and because they did not receive any
other notice that their filing was insufficient. Plaintiffs assert that “[i]t has been
counsel’s experience that whenever the United States District Court deems an
electronic filing to be incorrect or insufficient they send to counsel a ‘Notice of
Deficiency’ and specifically outline the reason the submission is deficient.”
Plaintiffs contend that they did not receive such notice in this instance, but that
they “promptly” refiled after discovering the error on their own.2 Plaintiffs do
not point to any requirement that filers be contacted with such notice, and do not
2
Plaintiffs’ claim that they “promptly took corrective action” once they discovered the
error is dubious. The mistaken filing occurred on December 22, 2008. Plaintiffs contend that
they decided to check on the status of the appeal when after filing they “did not receive, within
the customary 7 to 10 day delay, a notice from the district court of fees to be posted in
connection with the appeal.” Had plaintiffs acted to correct their error seven to ten days after
the December 22 filing, they could have moved the district court to extend the time to file a
notice of appeal. Under Federal Rule of Appellate Procedure 4(a)(5), a district court may, for
good cause shown, extend the time to file a notice of appeal if a party moves for an extension
no later than thirty days after the thirty-day appeal period prescribed under Rule 4(a)(1)(A)
has lapsed. But plaintiffs did not make such a motion and did not make a corrected filing until
February 5, 2009, after both the deadline to appeal and the deadline for extension had lapsed.
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No. 09-30087
dispute that specific notice of the deficiency and instructions on how to cure were
posted to the docket sheet on December 22.
In Kinsley, we rejected the plaintiff’s contention that reliance on
misinformation in a deficiency notice generated by the district court’s electronic
filing system provided a basis for avoiding the time requirements of 28 U.S.C.
§ 2107(a) and Rule 4(a)(1). The deficiency notice in Kinsley stated, pursuant to
local rule, that the plaintiff would have five days to remedy the deficiency with
a corrected filing. The plaintiff filed her corrected notice of appeal within the
five-day period, but after the thirty-day period prescribed by § 2107(a) and Rule
4(a)(1) had lapsed. We held that the plaintiff’s compliance with the local rule
and deficiency notice did not excuse her failure to comply with the federal
statute and federal rule, concluding that to do otherwise would “elevate the local
rule over the federal rules governing the filing deadline for a notice of appeal.”
Kinsley, 570 F.3d at 589. Here, as in Kinsley, plaintiffs’ assertion that they
relied on misstatements in, or on the absence of, a deficiency notice does not
excuse them from the “unquestionably mandatory and jurisdictional”
requirements of 28 U.S.C. § 2107(a) and Rule 4(a)(1). Id. at 590.
III. Conclusion
Plaintiffs’ timely filing was not sufficient as a notice of appeal, and
Plaintiffs’ sufficient notice of appeal was not timely. The appeal is DISMISSED.
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