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Second Circuit Nuance Regarding Rejected Filings

by | Mar 7, 2019

The Second Circuit Court of Appeals notes specific deadlines with respect to timing of Appellant, Appellee and Reply Briefs (as well as for other filings). The deadlines for each subsequent brief (after the primary Appellant’s Brief) are measured from the date on which the brief immediately prior was filed (ie: the Appellee must notify the clerk within 14 days after the last Appellant’s Brief is filed the deadline by which he will file his Appellee’s Brief. That date must be within 91 days of the Appellant’s Brief filing).

Moreover, pursuant to local rule 31.2, “A reply brief must be filed within 14 days after the filing of the last appellee’s brief.” The question arises, however, as to what happens when a filing is rejected- for instance, in this case, the Appellee’s Brief. If the Appellee’s Brief is filed via ECF on a particular date, but is rejected for whatever procedural defect, and is corrected 2-3 days later with a new ECF filing, when is the Reply Brief deadline? Does the Appellant derive the benefit of the Appellee’s defective filing and get the extra 2-3 days for his Reply Brief?

The answer, in short, is no. The 14 days which Appellant receives for his Reply are measured from the date of the initial filing even if a rejection of that initial filing takes place. The Second Circuit measures from the time of filing, not from the time of the corrected filing.

Make a note of this so that you’re not late!

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