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March 4, 2010
Subject:
Quiz of the Month, Second Circuit Court of Appeals Review & ECF System
Down
Last week we left off
our topic of reviewing the 2nd Circuit by requesting the transcript and the
filing of Forms C & D. One would think you can sit back and wait for
the court to get back to you, but that is not the case. If the appellant
has not received the transcript within 30 days of the date the transcript
was requested, the appellant must inform the Court of Appeals in writing
and explain all efforts the appellant has made to obtain the transcript.
Thereafter, the appellant is required to update the Court in writing in
14-day intervals about the status of the transcript until the transcript
has been completed. During this time the Clerk’s Office will attempt to
facilitate delivery of the transcript.
Before the 30 days
expires as to the transcript issue we would like to mention one more 14 day
reminder that has to be done after filing the Notice of Appeal. Within 14
days of filing the notice of appeal, the appellant must do whatever is
necessary to enable the district court clerk to assemble and forward the
index of the record to the Court of Appeals. The appellant’s counsel must
ensure that the district court has a complete index. Receipt from the
district court of a certified copy of the index will satisfy the
requirement to file the record unless the Court of Appeals directs
otherwise. If the Court of Appeals requires the entire record or any
portion thereof, counsel must timely prepare the record so that it can be
transmitted to the Court. See FRAP 10, 11, LR 11.1. The record on appeal
consists of all of the lower court documents including transcripts. For
counseled civil appeals the Court of Appeals generally requests that only
the index of the record be filed; the documents that constitute the record
remain in the district court until needed.
Now that we have finally
completed all of the preliminary items it is time to move on to filing the
briefs. Within 14 days of the date the appellant receives the completed
transcript or the date the appellant is required to file the certificate on
Form D indicating that no transcript will be ordered, the appellant must
notify the Court in writing of the date by which the appellant’s brief will
be filed. Unless the case involves a voluminous transcript, the appellant
must select a filing date that is within 120 days of receipt of the
completed transcript. Appellant’s letter will be so-ordered unless the
Court determines the selected filing date is unacceptable. An appellant’s failure to comply with a
so-ordered scheduling notification or any other order regarding the
scheduling of briefs may result in dismissal of the appeal without further
notice. See LR 31.1, 31.2.
Within 14 days of
receipt of appellant’s brief or the last appellant’s brief in a
multi-defendant appeal, the appellee must notify
the Court in writing of the date by which the appellee’s
brief will be filed. Unless the case involves a voluminous transcript, the appellee must select a filing date that is within 120
days of receipt of the last appellant’s brief. Appellee’s
letter will be so-ordered unless the Court determines the selected filing
date is unacceptable. If a cross-appeal has been filed, within 14 days of
receipt of the last cross-appellant’s brief, the appellant-cross-appellee must notify the Court in writing of the date
by which the appellant-cross-appellee’s response
brief will be due. The appellant-cross-appellee
must select a filing date that is within 60 days of receipt of the last
cross-appellant’s brief. Absent extraordinary circumstances, an appellant’s
failure to submit a scheduling letter will result in a briefing deadline of
40 days from the date the completed transcript is received. An appellee’s or appellant-cross-appellee’s
failure to submit a scheduling letter will result in a briefing deadline of
30 days 7 from the date the last appellant’s or cross-appellant’s brief is
filed. If a reply brief is filed, it must be served and filed within 14
days after service of the last appellee’s brief
(or cross-appellee’s brief if a cross-appeal has
been filed) but not less than 7 days before argument unless the Court
allows a later filing. See LR 31.2(a)(2). A party’s filing of a potentially
dispositive motion, a motion for IFP status, or a
FRAP 42 stipulation for dismissal without prejudice at any time prior to
one of the briefing schedule deadlines set forth above tolls the time
period for the filing of scheduling notifications and briefs until the
Court decides the motion or the case is reinstated. It is our understanding
that extensions of time to file
briefs will not be granted in the absence of a most extraordinary
circumstance.
ECF System Down (USBC/EDNY)
Due to critical hardware
upgrade, the court's ECF/PACER system will be unavailable for filing or query
purposes beginning at 5:30 p.m. on Thursday,
March 4, 2010. The Voice Case Information System (VCIS)
will also be unavailable during this period. The system will be returned to service at
6:30 p.m.
Pacer is updated
nearly real-time from ECF:
As you may already know
the local federal courts provide very quick updates to PACER following any
new entries on their CM/ECF systems.
This of course means
that when a case has been added to CourtAlert for Pacer for an hourly
watch, we will automatically check for new dockets every hour.CourtAlert typically checks only during work
hours, but please keep in mind a PACER check can also be done 24 hours a
day/7 days a week.
CourtAlert for Pacer
notification can be sent to many email addresses at once at no additional
fee. Some attorneys have found the advantage of using this service keeps
them silent as to watching certain cases. CourtAlert for Pacer is also used
to follow cases as a backup to CM/ECF.
CourtAlert for Pacer is
a national service: every US District, Bankruptcy and Circuit Court (other
than Federal Circuit) and cost a small fraction to the alternative Pacer
watch services. The frequency schedule of search is flexible, <<details>>.
Reminder
CourtAlert CM/ECF
clients are reminded to join us on the next Version Announcement, March
11, 2010
at 11:00 AM at Wachtell Lipton.
Quiz of the
Month
This month's winner is:
Andrew Scott of Cleary Gottlieb Steen & Hamilton LLP
*As soon as we have
received the correct answers we will post them on the Tip of The Week for
that day. We will accept individual responses from other members of your
staff or firm, but the winning submission can only come from one person and
not a combination of answers from the same firm. Responses by email will
only be accepted. Please email your answers to Support@CourtAlert.com or reply to
this email.
Quiz Topic: Since our
topic today covers the Second Circuit let's turn our attention there and
tackle some issues we have covered over the past two weeks.
1) How many days does an
appellant have to file Civil Appeal Pre-Argument Statement (Form C) after
filing a civil appeal? 14
2) How many days does
an appellant have to file a Notice of Appearance after receiving the
Court's docketing notice? 14
3) Do parties still have
to submit an electronic version of each document they file for docket
numbers beginning with "09-" or less? Yes
4) What are the number
of days an appellee has to advise the court when
their brief will be due following receipt of the appellant’s brief or the
last appellant’s brief in a multi-defendant appeal? 14
5) Please include the
hyperlink with your answer that needs to be used for an attorney to
register for a CM/ECF filing ID. https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-regform.pl
We are Committed to Remain the Best!
Thanks,
Izzy Schiller, President
CourtAlert
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