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Notice of Appeal Untimely Where Attorneys Claimed That Notice Through Electronic Filing System Did Not Start Time for Appeal

After trial and the denial of post-trial motions, AT&T Operations, Inc. (“AT&T”) filed motion to extend the time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a). AT&T argued that the e-mail notice of electronic filings (NEF’s) that defense counsel received did not provide them with “notice” that Defendants’ substantive post-trial motions had been resolved. To make this argument, AT&T noted that the e-mail notifications defense counsel received only contained language regarding the district court’s grant of their motions for leave to file sealed documents, but failed to mention the denial of their substantive post-trial motions, which was provided in the same orders. Nonetheless, the district court noted that AT&T did, however, receive e-mail notifications that the Court had entered an order on Plaintiff’s bill of costs and had denied Defendants’ motion for new trial and JMOL on invalidity which were not sealed pleadings.

AT&T also argued that the docket entries for the orders at issue were modified two days later to reflect the denial of the substantive post-trial motions, but no new electronic notices were sent by the district court’s electronic case filing (ECF) system to reflect these amended docket entries. Accordingly, AT&T contended that based on the NEFs they received, counsel believed the motions for JMOL and new trial on damages and non-infringement had not been disposed of and remained pending before the Court. As a result, AT&T claimed that it “did not receive sufficient notice of the substance of the orders entered justifies reopening the time to file an appeal.”

The district court disagreed finding that the defense counsel should have known better. “The Court finds it is not sufficient for attorneys to rely on the electronic and e-mail notifications received from the ECF system, as the docket entries and notifications do not always convey the Court’s disposition in its entirety. The substance of the orders carry validity under the law, not the electronic NEFs. See, e.g., Nichols-Morris Corp. v. Morris, 279 F.2d 81, 82 (2d Cir. 1960) (noting time to appeal from judgment begins to run from date of its entry, not from notice of its entry). The Court must agree with Plaintiffs opposition to Defendants’ motion and finds it very troublesome that: for almost 52 days after the entry of the orders, none of the at least eighteen counsel that received the NEFs on behalf of Defendants, even after admittedly having their assistants download and file such orders, bothered to read the orders issued by the Court, check the docket for activity, or check on the status of the case. Such an omission is particularly alarming in this case where a $40 million judgment has been entered against Defendants. The Court also finds it troublesome that defense counsel admittedly received notice, on the same day as the other orders at issue, that its motion for a new trial and JMOL on invalidity had been denied and that the Court had ruled on Plaintiffs bill of costs. Defense counsel should be aware that costs are not assessed by the Court until all pending matters that affect the finality of judgment, including post-trial motions, have been ruled on. See generally FED. R. Civ. P. 54(d) (noting that costs are generally awarded as a matter of course to the prevailing party); see Shum v. Intel Corp., 629 F.3d 1360,1366-70 (Fed. Cir. 2010) (same).”

The district court also rejected the argument that AT&T’s counsel did not receive notice of the orders. “The Court is not convinced that Defendants failed to receive notification that their substantive post-trial motions had been disposed of. Instead, the Court finds Defendants received notification that all their substantive post-trial motions had been denied the moment the corresponding orders were downloaded by legal assistants in both of defense counsel’s law firms. In other words, the Court finds that “lack of notice” is not equivalent or excusable by an attorney’s failure to read the Court’s orders. See Khor Chin Lim v. Courtcall Inc., 683 F.3d 378, 379-81 (11th Cir. 2012) (noting failure of attorney to open mail does not constitute failure to receive notice for the purpose of Rule 4(a)(6)); Bradley v. Kelly Services, Inc., 224 Fed. App’x 893, 895 (11th Cir. 2007) (noting that Rule 77(d) deems mailing of notices by the clerk to be notice to a party, regardless of whether the notice is actually received or read by the party). Because Defendants received notice of the denial of their post-trial motions, this Court will not reopen the time to file a notice of appeal under Rule 4(a)(6), which requires a lack of notice.”

The district court also fund that there would be prejudice to the plaintiff if the district court granted the order. “Contrary to Defendants’ assertion, the Court finds that Plaintiff would be prejudiced if Defendants are permitted to file its notice of appeal after missing the deadline. This prejudice also prevents the Court from granting Defendants an extension of time to file its notice of appeal under Rule 4(a)(6).”

Two-Way Media, LLC v. AT&T Operations, Inc., et al., Case No. SA-09-CA-00476-OLG (W.D. Tex. Feb. 2014)

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