Wednesday, April 28, 2010

Vanderwerf - A Cautionary Tale

We liked the district court summary judgment grant in Vanderwerf v. SmithKline Beecham Corp., 529 F. Supp.2d 1294 (D. Kan. 2008) a lot.  It made our honorable mention list for best decisions of 2008 - which is something for a district court opinion in a one-off case.  Before that, we discussed it in our learned intermediary rule lessons, both beginner and advanced, and named it as one of our warning causation greatest hits.  An earlier decision in the same case, Vanderwerf v. SmithKlineBeecham Corp., 414 F. Supp.2d 1023, 1027 (D. Kan. 2006), was also notable because of its elegant disposal of a FDCA-based negligence per se claim., as we observed here.

So we were waiting to see what the Tenth Circuit did with the appeal.  As it turns out, it dismissed it yesterday - as untimely filed.  Ouch.  That's embarrassing, maybe worse.  We'll describe what happened, so it doesn't happen to our readers (at least, we hope, to those on our side of the "v.").  After summary judgment was entered, the plaintiff filed a reconsideration motion under Fed. R. Civ. P. 59.  Then nothing happened.  For seven months, nothing happened.  Plaintiff got frustrated (we assume).  Frustration can lead to foolish acts.  The problem is that a Rule 59 motion tolls the 30-day time period for appealing only  if there is an order "disposing of" that motion.  That's what Rule 4(a)(4)(A)(iv) says in black and white.  But in Vanderwerf the plaintiff simply withdrew the motion - without getting any ruling whatsoever - and filed a notice of appeal.

Bad move.  The Tenth Circuit held that the notice of appeal was filed 6 month too late and dismissed the appeal.
We recognize the severity of today’s holding, and empathize with the plight of parties who are effectively prohibited from filing a notice of appeal because of the inaction of a district court. But we must rely upon the unambiguous standard we have consistently applied to the timeliness requirements of Rule 4.
Slip op. at 14.

Morals of the lesson:  (1) read the frigging rules before you file any motion - such as a motion to amend or reconsider a judgment - you're not 100% familiar with, because this stuff can be more complicated than you think; (2) read the frigging rules before you do something unusual - such as withdraw a motion without getting a ruling; and (3) if you've had a Rule 59 motion pending longer than 30 days after entry of an otherwise appealable judgment, no matter how frustrated you might get you've got to get some sort of an order disposing of it, otherwise your appeal will be too late, because the appeal period has already run.

If you don't do any of these things, at least make sure to notify your carrier.

1 comment:

Anonymous said...

Actually Rule 4(a)(4)(A) says the the time for appeal "runs" from entry of the order disposing of the last such remaining motion. It does not say that the deadline is only "tolled" if such an order is entered. Although the 10th circuit arguably reached the correct conclusion, a literal reading of the rule would suggest that the time for appeal doesn't even begin to run until there is an order disposing of the post-trial motion (as the Dissent in Vanderwerf points out).