United States v. Ernestine Audry James, AKA Ernestine James, 146 F.3d 1183 (9th Cir. 1998). · Go Syfert
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United States v. Ernestine Audry James, AKA Ernestine James, 146 F.3d 1183 (9th Cir. 1998). Cases Citing This Book View Copy Cite
4 citation events across 2 distinct courts.
Strongest positive: Hampton v. Judicial Branch (ctd, 2020-06-13)
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (rule) Hampton v. Judicial Branch
D. Conn. · 2020 · confidence medium
Conn. Feb. 5, 2012) (“The justification for giving three additional days under Rule 6(d) . . . appears to be that it takes some time for a document to get from the serving party at the moment of transmission, to the receiving party at the moment of receipt, and that, as a practical matter, an estimate of three business days is an appropriate default rule to eliminate debate about whether the date of actual notice is relevant, and, if so, what that date is in each individual case.” (citing United States v. James, 146 F.3d 1183, 1184 (9th Cir. 2019)); see also Lunaridini v. Mass. Mut.
discussed Cited as authority (rule) Elgard Corp. v. Brennan Construction Co.
2d Cir. · 2007 · confidence medium
See, e.g., McHale v. United States, 175 F.3d 115, 117 (2d Cir.1999) (noting dismissal of prior appeal for counsel’s failure to comply with scheduling order); United States v. James, 146 F.3d 1183, 1184 (9th Cir.1998); see generally United States v. Raimondi, 760 F.2d 460, 462 (2d Cir.1985) (“The lawyer who assumes this Court will relieve him of an onerous but manageable' deadline ... does so at his own peril.”) (footnote omitted). “[Cjourts have an interest in expediting litigation, [and] abuses of process may be prevented by enforcing those defaults that arise from egregious or delibe…
discussed Cited as authority (rule) Rona Hertzner v. William J. Henderson, as Postmaster General for the United States Postal Service (2×)
2d Cir. · 2002 · confidence medium
R.App. 4 time requirements for taking an appeal have been treated as especially rigid, and a federal court's authority to extend or suspend those limits is narrowly limited."); McHale v. United States, 175 F.3d 115, 117 (2d Cir.1999) (noting dismissal of prior appeal for counsel's failure to comply with scheduling order); United States v. James, 146 F.3d 1183, 1184 (9th Cir.1998) (striking untimely petition for rehearing in banc); see generally United States v. Raimondi, 760 F.2d 460, 462 (2d Cir.1985) ("The lawyer who assumes this Court will relieve him of an onerous but manageable deadline .…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Ernestine Audry JAMES, AKA Ernestine James, Defendant-Appellant
96-30081.
Court of Appeals for the Ninth Circuit.
Jul 6, 1998.
146 F.3d 1183
98 Cal. Daily Op. Serv. 5313
1998 U.S. App. LEXIS 15037
1998 WL 354476
Noonan, Thompson, Kleinfeld.
Cited by 4 opinions  |  Published

Defendant-appellant’s petition for rehearing with suggestion for rehearing en banc is stricken as untimely.

Federal Rule of Appellate Procedure 40(a) says a petition for rehearing may be “filed” within 14 days after entry of judgment. Our opinion was filed March 24, so the petition was due April 7. A clerk’s order on behalf of the court granted an extension at appellant’s request “of 21 days until April 28.”

[*1184] The petition for rehearing was filed late. It has a file stamp on it saying that it was filed with the clerk on May 4. The clerk on that date, subsequent to April 28, had authority only to lodge the petition in the file, not to file it. Federal Rule of Appellate Procedure 25(a)(2)(A) says “filing is not timely unless the clerk receives the papers within the time fixed for filing.” Where the papers are mailed to the clerk, but not received by the clerk, by the end of the time period for filing, this rule compels the conclusion that filing is untimely.

It does not matter that the petition was served on opposing counsel on April 28, as the papers indicate, and perhaps mailed to the court on that date. It was due to be “filed” April 28 and was not. Timely service does not obviate the need for timely filing.

The additional three days added to “a prescribed period after service of a paper on that party” under Federal Rule of Appellate Procedure 26(c), accounts for expected mail delays when a time period runs from the date of service. This rule does not change the requirement that by the end of the period so lengthened, the paper be filed and not merely served. Nor does it affect filing deadlines that do not run from “service of a paper upon that party.” For petitions for rehearing, the time runs from “entry of judgment,” under Federal Rule of Appellate procedure 40(a). The special rule for inmate filings, Federal Rule of Appellate Procedure 25(a)(1)(C), has no application to a paper filed by counsel, as here.

Lawyers on all sides and judges rely on the clarity of deadlines for filing, and cannot afford to have them muddied up by confusion with mailing or service. Counsel like to have a date certain when they can ascertain that something is unopposed. Sometimes when a motion is well taken, opposing counsel do not ask for authority from their clients to stipulate to it, but purposely let the filing date pass without filing opposition, and then the judge acts on the motion as unopposed the next day. And prudent lawyers typically “walk the papers through” when filings are made close to the deadline. Everybody benefits from clarity and certainty.