Scot Vince v. Rock County, Wisconsin ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1659
S COT V INCE,
Plaintiff-Appellant,
v.
R OCK C OUNTY, W ISCONSIN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:08-cv-00591-slc—Stephen L. Crocker, Magistrate Judge.
S UBMITTED A PRIL 15, 2010—D ECIDED M AY 3, 2010
Before B AUER, P OSNER, and E VANS, Circuit Judges.
P ER C URIAM. Scot Vince suffered a beating at the
hands of an inmate in the Rock County (Wisconsin) jail.
Vince, a longtime confidential informant for Rock County
law enforcement agencies, claims that he should not
have been housed in the jail’s general population fol-
lowing an arrest for bail jumping. A magistrate judge
determined that Vince’s injury could not be attributed
to any of the defendants Vince named in his civil rights
2 No. 10-1659
case and, with the consent of the parties, granted sum-
mary judgment for defendants, terminating the case.
A Rule 58 judgment was entered on December 14, 2009,
but the time for Vince to appeal was tolled because he
filed a timely motion to alter or vacate judgment pursu-
ant to Rule 59. See Fed. R. App. P. 4(a)(4)(A)(iv). The
magistrate judge denied the motion, and his order was
entered on the district court’s civil docket on Feb-
ruary 10, 2010, requiring that any appeal be filed within
30 days of this date.
On March 12, 2010, the 30th and last day of the appeal
period, Vince’s counsel electronically sent a notice of
appeal to the clerk’s office, using the court’s mandatory
electronic filing system. Unfortunately, Vince’s attorney
transmitted the notice of appeal using the wrong event
code. Clerk’s office staff discovered the error and notified
counsel of his mistake in an email sent on March 15,
2010, directing him to re-file the notice of appeal with
the correct event code. Counsel did so, and the notice
of appeal was transmitted to the district court a
second time on March 18, 2010.
The second transmission of the notice of appeal, sent
six days after the time to appeal had expired, was for-
warded to this court and caused Seventh Circuit court
staff to question the timeliness of Vince’s appeal. In a
memorandum addressing this court’s concern about its
jurisdiction over Vince’s appeal, Vince’s counsel recounts
his mistake in transmitting the appeal, believing that
“the ‘original filing’ of the Notice of Appeal was
March 12, 2010”, and “the March 18, 2010 filing was
No. 10-1659 3
[merely] to place the earlier filing in the ‘right event’ ”. The
district court docket, however, did not recognize the
“original filing” date. The entry for March 12, identified as
docket entry no. 98, noted that the tendered notice of
appeal was “Disregard[ed]” and “refiled as # 99 [on
March 18, 2010]”. Docket entry no. 99 is Vince’s notice
of appeal and bears a filing date of March 18, 2010. We
note that this docket entry also includes a clerk’s note
that the “appeal was originally filed on 3/12/2010 with
the wrong event used”, and supports Vince’s claim that
his notice of appeal was timely.
Three rules speak to the issue of appellate jurisdiction
presented in this case. Under Rule 83(a)(2) of the Federal
Rules of Civil Procedure, “[a] local rule imposing a re-
quirement of form must not be enforced in a way that
causes a party to lose any right because of a nonwillful
failure to comply.” Similarly, Rule 5(d)(4) protects
against missteps in a litigant’s compliance with local rules
pertaining to the filing of papers, directing the clerk “not
to refuse to file a paper” due to its nonconformity.
Fed. R. Civ. P. 5(d)(4). And more specifically for our
purposes, Federal Rule of Appellate Procedure 3(c)(4) pro-
hibits the dismissal of an appeal “for informality of
form or title of the notice of appeal.”
Virtually every federal court today operates a compre-
hensive case management system that allows it to main-
tain electronic case files and offer electronic filing over
the Internet. It is incumbent that attorneys litigating in
federal courts learn the essentials of e-filing. The Western
District of Wisconsin requires all documents to be filed
4 No. 10-1659
electronically unless they fall under certain exceptions—
none of which are relevant to this case. Anticipating that
mistakes will be made, the Western District e-filing user’s
manual includes a section listing common mistakes and
describes the steps that the clerk’s office takes to correct
an error found. Still, there are bound to be mistakes
made as attorneys become accustomed to the nuances
of electronic filing. Counsel’s mistake here was the first
listed mistake in the Western District’s manual.
We recently determined in United States v. Harvey,
516 F.3d 553, 555-56 (7th Cir. 2008), that a criminal de-
fendant timely filed his notice of appeal when he sub-
mitted it electronically to the clerk’s office even though
“the submission did not conform to local rules”. The
district court’s manual governing electronic filing re-
quired that a paper copy of the notice of appeal be
filed. Harvey neglected this step but corrected the
mistake once the clerk’s office brought it to his atten-
tion, and he filed a paper copy of the notice (although
it took him two months to do so). The Second Circuit
addressed a similar factual situation in Contino v.
United States, 535 F.3d 124, 126-27 (2d Cir. 2008), agreeing
with our reasoning in Harvey. Counsel’s failure to elec-
tronically transmit Vince’s notice of appeal with the
proper event code was an error of form, just as in
Harvey and Contino. Compare Klemm v. Astrue, 543 F.3d
1139, 1141-44 (9th Cir. 2008) (notice of appeal filed
within appeal period though in paper form rather than
electronically, contrary to local rules, and accompanied
by a postdated check, was rejected by the clerk, but did
not defeat appellate jurisdiction).
No. 10-1659 5
Earlier, in addressing the date of a complaint’s filing,
we concluded that an electronic filing system “must
accept every document tendered for filing.” Farzana v.
Indiana Department of Education, 473 F.3d 703, 708 (7th
Cir. 2007). In that case, we determined that a complaint
is timely filed even though the district court’s electronic
filing system rejected it due to an error in the docket
number, observing “[t]he software that operates an e-filing
system acts for ‘the clerk’ as far as Rule 5 is concerned;
a step forbidden to a person standing at a counter
is equally forbidden to an automated agent that acts on
the court’s behalf.” Farzana, 473 F.3d at 707. Accord
Royall v. National Association of Letter Carriers, 548 F.3d
137, 140-43 (D.C. Cir. 2008), citing Farzana.
There may well be cases in which a filing is so riddled
with errors that it cannot fairly be considered a notice
of appeal, and therefore its filing, electronic or other-
wise, will not vest an appellate court with jurisdiction,
United States v. Carelock, 459 F.3d 437 (3d Cir. 2006) (an
electronically filed notice of appeal that bore incorrect
name of defendant, wrong docket number, wrong district
court judge’s name, and wrong judgment date not suffi-
cient), but that is not the case here. We conclude that
Vince’s appeal is timely. Counsel practicing in the
federal courts today would be well advised to pay close
attention to their electronic transmissions, so that errors
in electronic filing do not adversely affect one of their
cases. Otherwise, counsel may find that “ ‘a computer lets
you make more mistakes faster than any invention in
human history—with the possible exceptions of hand-
guns and tequila’ ”, as Judge Aldisert observed in
6 No. 10-1659
Carelock, 459 F.3d at 443 (citation omitted), quoting a not
so old adage.
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