Appellate Law

Representative Denied Permission To Correct Notice To Show Appeal For Entire Class

By Steven R. Merican

Michael Marrs, representing a class of similarly aggrieved employees, sued Motorola for violation of the Employee Retirement Income Security Act. After Motorola got a summary judgment, Marrs appealed. Marrs?s notice of appeal was filed timely, but it stated only that he was appealing. It did not state that he was appealing on behalf of the class he represented.

Under Federal Rule 3(c), as interpreted by the Seventh Circuit Court of Appeals, ?the notice of appeal must indicate that the class representative is appealing in his representative capacity.? Marrs had to fix his notice of appeal, or else the appellate court would not have jurisdiction to consider an appeal by the class. But the time for filing the notice of appeal had passed. So to fix the notice, Marrs asked the appellate court to allow him to file a corrected version that specifically said the appeal was for the entire class.

The Seventh Circuit Court of Appeals denied Marrs?s motion. The opinion does not state why, but presumably the court adopted the rationale argued by Motorola ? i.e., that Marrs?s motion really was asking for extra time to file a notice of appeal for the class, and that he did not meet the conditions for allowing extra time.

Marrs argued that permitting him to file a new notice of appeal would not prejudice Motorola, especially because the parties had not yet briefed the merits of the appeal. The Seventh Circuit rejected that argument because ?lack of prejudice is not a defense to the application of Rule 3(c).?

Read the whole case, Marrs v. Motorola, Inc, No. 08-2451 (11/7/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on January 13, 2009 (boomark / email).