Sometimes, the rules seem rather tangled. But go through them slowly, and they usually all “come together.”
Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely. The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order. The issue thus became when the 30-day deadline for filing the notice of appeal was triggered.
The analysis is rather straightforward.
The date of entry of a judgment triggers a 30-day deadline to appeal from it. (Fed. R. App. P. (“FRAP”) 4(a)(1).) For this purpose, the date of entry is defined by FRAP 4(a)(7), which sets forth two different standards depending on whether the judgment or order requires a separate document under the Federal Rules of Civil Procedure:
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs: the judgment or order is set forth on a separate document, or 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).
So, determining the deadline for the notice of appeal from any given judgment involves two steps once the judgment is identified: (1) determine when — according to the definition of “entry” in FRAP 4(a)(7) — the judgment was entered for purposes of FRAP 4(a); and (2) add thirty days. Simple, right?
The appellees in Menkem didn’t think so. The order appealed from in that case fell under FRAP 4(a)(7)(A)(ii) because it required a separate document, which was never filed. The court makes quick work of the appellees’ argument that FRAP 4(a)(7) sets the deadline for filing the notice of appeal:
[Appellees argue] that if more than 150 days have passed from the entry of the order, the time to appeal that order has expired. [Appellant] correctly asserts that under Federal Rule of Appellate Procedure 4(a)(7)’s plain language, judgment was entered after 150 days, which then started the Federal Rule of Appellate Procedure 4(a)(1)(A) 30-day appeals period. In other words, Menken had 180 (150 days plus 30 days) from entry of the order on January 27, 2005 in which to appeal.
[Appellant] filed his notice of appeal on July 22, which is 176 days from the entry of the January 27, Order. [Appellant’s] notice of appeal is therefore timely.
It’s surprising appellees would want to get started on the wrong foot with this argument. As the court notes, the result is evident from the plain language of the rule.
Turning to the merits of the appeal, the Ninth applies a straightforward personal jurisdiction analysis and reverses the district court’s order dismissing the case for lack of personal jurisdiction. Professor Martin at California Appellate Report calls this a “wonderful” opinion for schooling students on personal jurisdiction. He also evaluates Judge Bybee’s concurring opinion, which advocates an abbreviated test for personal jurisdiction. He gives high praise to Judge Bybee for his willingness to buck doctrine and think outside the box but finds his argument unpersuasive.