Lawyer Can’t Appeal if Deadline Missed due to Failure in Updating E-mail Address

01/25/13

This is a first for an appeals court finding an abuse of discretion in the granting of a 4(a) (6) motion on late filing by a trial court.


In the WorldCom bankruptcy matter, on Thursday, a split Circuit Court of Appeals for the 2^nd Circuit ruled that filing a late notice of appeal was not justified because CNI (Communications Network International) attorney, W. Mark Mullineaux had failed to update his email address in the electronic system of the district court.

The appeals court held that CNI’s lawyer had missed the key deadline through his own fault.

Though the district court, as the court of first instance, had excused CNI’s late notice of appeal under Federal Rule of Appellate Procedure 4(a)(6) to avoid the 30-day time-bar, the appeals court found differently and overturned the decision of the lower court.

Writing for the 2^nd Circuit, Judge Lewis Kaplan observed, “There is nothing in the history of the rules … to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves.”

Kaplan further observed that CNI’s failure to receive the notice in time “was entirely and indefensibly a problem of (Mullineaux’s) making, and Rule 4(a) (6) was not designed to reward such negligence.”

While WorldCom filed for Chapter 11 in 2002, a subsidiary, MCI WorldCom was bought by Verizon, which subsequently filed the concerned lawsuit against CNI for recovery of money due for unpaid telecommunication services.

MCI received $2.4 million in damages, attorney fees and interest in 2007; CNI appealed, and the Southern District affirmed in 2010.

However, Mullineaux pleaded that he never received notice of the ruling by the Southern District as he had missed updating his email address in the court’s electronic notification system. Consequently, Mullineaux’s notice of appeal occurred 56 days after the trial court’s order, and he filed a motion under Rule 4(a) (6), which was granted by the Southern District.

But, on Tuesday, the 2^nd Circuit reversed. Kaplan further commented, “It is remarkable that Mr. Mullineaux could fail to take (the) most basic steps to receive proper notifications, while at the same time relying entirely on such notifications to ensure that he filed a timely notice of appeal.”

However, in dissent, Circuit Judge Gerald Lynch held that the Rule 4 (a) (6) was created specifically to excuse the failure of properly using the court’s electronic system. Lynch observed, “According to the majority opinion, district courts may not grant relief, despite the contrary text of the rule, when the conditions of the Rule are satisfied, unless the litigant was without fault.”

The case is Communications Network International, Ltd v. MCI WorldCom Communications, U.S. Circuit Court of Appeals for the 2^nd Circuit, No. 10-4588.