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There Are Few Requirements for a Notice of Appeal, But This 9th Cir. Appeal Is Dismissed for Failing Nearly All of Them

Tim Kowal     May 12, 2021

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed all of them.

To prepare a valid notice of appeal, the notice simply needs to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice,” “designate the judgment, order, or part thereof being appealed,” and name the court to which the appeal is taken (here, the Ninth Circuit). Fed. R. App. P. 3(c)(1)(A)–(C).

In Ditech Financial, a counter-claimant, Dutch Oven Court Trust, filed a notice of appeal. But the appellant listed the wrong parties on the notice. And also the wrong case number. When the notice came to describing the judgment being appealed from, appellant listed the wrong judgment, too. The date of the judgment was also wrong.

Presumably, appellants correctly identified the Ninth Circuit as the court to which the appeal was taken.

The Ninth Circuit zeroed in on just one error supporting dismissal:

"While a “technical error in a notice of appeal does not deprive [this court] of jurisdiction,” we have reiterated the Supreme Court's admonition that “failure to name a party in a notice of appeal is more than excusable informality, but rather, ‘it constitutes a failure of that party to appeal.’ ” Le v. Astrue, 558 F.3d 1019, 1022–23 (9th Cir. 2009) (citation omitted) (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988)). We decline Dutch Oven's invitation to treat these deficiencies as technical errors."

Appellant tried to correct these defects by filing an amended notice of appeal. Which might have worked, but a corrected notice of appeal still has to be filed timely within 30 days after entry of the judgment. Fed. R. App. P. 4(a)(1)(A). “[B]ecause the time constraints outlined in Rule 4(a) implement the limitations Congress imposed on this Court by statute, [this Court] must dismiss civil appeals that are untimely for lack of jurisdiction....” United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007).

Federal Practice Tip: California practitioners who are frequently told that the deadline to appeal can no-way-no-how be extended under any circumstances may forget that the deadline may be extended in federal appeals by motion to the district court. The Ninth Circuit here notes that appellant's amended notice of appeal might have saved its appeal had it sought the requisite extension of time to file it under Fed. R. App. P. 4(a)(5).

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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