The case is RLI Insurance v. JDJ Marine, decided on May 10. The current Second Circuit rules say that you have 91 days to file your brief. The rules add that extensions are disfavored. The Court of Appeals (Newman, Cabranes and Winter) provides insight into its prior experiences in dealing with delays and deadlines before it adopted the current rules:
About ten years ago, the court faced a caseload crisis. The number of cases briefed and ready to be calendared for argument was at an historic low, so low that calendars sometimes could not be filled. This was not the result of a diminished caseload; in fact, pending cases numbered in the thousands above historic levels because of a huge influx of immigration matters.
The problem of so few cases ready for argument was determined to be the result of a culture in which the bar had come to believe that the 40- (for appellant) and 30- (for appellee) day time periods set out in Federal Rule of Appellate Procedure 31(a)(1) were meaningless and that motions for extensions of time, usually for 30 days, to file briefs would be routinely granted time after time. This belief existed in spite of the fact that the orders granting the extensions would just as routinely state, in boldface type no less, that only “EXTRAORDINARY CIRCUMSTANCES” would justify another extension. The cause of the failure of the “EXTRAORDINARY CIRCUMSTANCES” warnings was that the Clerk’s Office, which ruled on the motions, was reluctant to resort to coercive measures -– and was so perceived by the bar. It was, therefore, decided that motions for extensions would be sent to a judge for decision and that, with warnings appropriate to the particular case, coercive measures, including dismissal, would be used when the warnings failed to produce a brief.
If you like this kind of inside baseball, the decision provides more information about what the Second Circuit had to deal with in resolving 50 to 75 extension motions per week for lawyers who either could not file the briefs on time or came to believe that extension motions would be liberally granted and therefore put off the work in the belief that extensions were theirs for the asking.
Things have changed. The lawyer sets the deadline, so long as it does not exceed 91 days. That means you have to get started on the brief long in advance of the deadline to ensure that you can finish up in time, allowing for personal and professional emergencies along the way.
In this case, appellant's counsel waited until the last minute to ask for more time, citing as the extraordinary circumstance a busy caseload. But too much work is not an extraordinary circumstance under the rule. The Court of Appeals did grant a six-week extension, but counsel again at the last minute sought more time on the basis of professional commitments that had been on the calendar for quite some time. So the Second Circuit dismissed the appeal. This decision arises from appellant's motion for reinstatement. That motion is denied and the case is dismissed even though appellee consented to reinstatement.
One final practice note from the Second Circuit. If you find yourself in this situation, the motion for reinstatement has to convince the Court of Appeals that the appeal has merit. Counsel did not do that in this case. But the better practice tip is to ask the Court for the full 91-days to file the brief and then to take that deadline seriously. Don't assume the Court will grant an extension for the asking. Don't let the Second Circuit make an example of you in a published decision like this.