                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 13a0126p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 ROBERT L. SHULER, and PAULINE SHULER
                                                -
 LEWIS, natural children and heirs at law of
 decedent Pauline Sloan Shuler; THE ESTATE      -
                                                -
                                                           Nos. 12-6270/13-5050
 OF PAULINE SLOAN SHULER,
        Plaintiffs-Appellants/Cross-Appellees, ,>
                                                -
                                                -
                                                -
           v.
                                                -
                                                -
 PROCTOR, M.D.; CARDIOVASCULAR SURGERY -
 H. EDWARD GARRETT, JR., M.D.; EVA G.

                                                -
                                                -
 CLINIC, PLLC; STERN OWNERSHIP GROUP
                                                -
 LLC, dba The Stern Cardiovascular Center;
 BAPTIST MEMORIAL HEALTH CARE                   -
                                                -
                                                -
 CORPORATION, dba Baptist Memorial
                                                -
 Hospital-Memphis; FRANK A. MCGREW,
                                                -
 M.D.,
      Defendants-Appellees/Cross-Appellants. N
                    Appeal from the United States District Court
                 for the Western District of Tennessee at Memphis.
              No. 2:12-cv-02003—S. Thomas Anderson, District Judge.
                           Decided and Filed: May 6, 2013
             Before: GUY, DAUGHTREY, and WHITE, Circuit Judges.

                                  _________________

                                       OPINION
                                  _________________



       MARTHA CRAIG DAUGHTREY, Circuit Judge. The plaintiffs currently have
pending an appeal from two of the district court’s orders in this case. The first challenge
is to the district court’s order dismissing their complaint under Federal Rule of Civil
Procedure 12(b) for failure to state a claim. The second contests the court’s denial of
their motion under Federal Rule of Civil Procedure 59(e) to alter or amend the order of



                                            1
Nos. 12-6270/13-5050      Shuler, et al. v. Garrett, et al.                          Page 2


dismissal. The defendants now move to dismiss the plaintiffs’ appeal as untimely, based
on a technical error in the electronic filing of the Rule 59 motion, which, the district
court held, made the Rule 59 motion untimely. If that ruling were correct, as the
defendants now assert, the filing of a Rule 59 motion would have failed to toll the
running of the 30-day period under Federal Rule of Appellate Procedure 4(a)(1), which
controls the time for filing a notice of appeal from the district court’s judgment. See also
Fed. R. App. P. 4(a)(4)(A)(iv) (permitting tolling by the timely filing of a Rule 59
motion to alter or amend the judgment). The failure to toll would render the subsequent
notice of appeal untimely and subject to dismissal. For the reasons set out below, we
conclude that the Rule 59 motion was timely filed, and we therefore deny the
defendants’ motion to dismiss.

        As noted above, a notice of appeal “must be filed with the district clerk within
30 days after the entry of the judgment or order appealed from.” Fed R. App. P.
4(a)(1)(A). However, if a party files a timely Rule 59 motion, the time to file a notice
of appeal runs instead from the entry of the order dismissing that motion. Fed. R. App.
P. 4(a)(4)(A)(iv). In this case, the plaintiffs filed their notice of appeal on October 16,
2012, which was more than 30 days after the district court’s order of dismissal entered
on August 8, 2012. However, it was filed less than 30 days after the district court’s
order denying plaintiffs’ Rule 59 motion, entered on October 12, 2012. Hence, if the
Rule 59 motion was timely filed in the district court, the notice of appeal was timely, as
the plaintiffs now contend.

        The defendants argue, to the contrary, that the appeal is untimely because the
plaintiffs’ Rule 59 motion was untimely filed. That rule gives parties 28 days to file a
motion to alter or amend a judgment. Fed. R. Civ. P. 59(e). In this case, plaintiffs’
counsel electronically filed the motion to amend on the last day of the 28-day period,
September 5, 2012. However, she entered the wrong docket information into the
electronic filing system (ECF). As a result, the motion was listed as filed on the docket
sheet of another case. The lawyer realized her error the next day, September 6, and filed
Nos. 12-6270/13-5050      Shuler, et al. v. Garrett, et al.                        Page 3


a notice of ECF correction with another copy of the motion attached, but she did not
actually re-file the motion until six days later, on September 12, 2012.

       According to the defendants, the fact that the motion was filed under the wrong
docket number means, in effect, that it was not filed at all. In response, the plaintiffs
insist that, because they received confirmation through ECF that the motion was received
by the clerk of the court within the 28-day period specified by the Federal Rules, the
motion was filed in a timely manner and their appeal is also timely.

       We thus have before us a question of first impression in this circuit: what is the
effect of listing the wrong docket number on an electronically filed motion? Our
research indicates that other circuit courts addressing this question in similar factual
circumstances have concluded that electronically-filed motions received by the clerk of
the court within the specified time period should be considered timely, even when they
contain the wrong docket number.

       In Farzana K. v. Indiana Department of Education, 473 F.3d 703 (7th Cir. 2007),
for example, the Seventh Circuit held that a complaint electronically filed under the
wrong docket number was timely filed, even though the computer in that case rejected
the filing because of the incorrect docket number. The court reasoned that the motion
became timely when the attorney “tendered [it] to the clerk’s office on the 30th day,”
noting that, in a traditional paper-filing system, the fact of the incorrect docket number
would not have affected the timely filing of the complaint. Id. at 707. “Had a paper
copy of the complaint been handed over the counter on July 6, a deputy clerk would have
crossed out the old docket number, stamped a new one, and filed the document.” Id.
Hence, the court concluded, “there is no reason to throw this suit out of court just
because the e-filing system did not know how to take an equivalent step.” Id.

       The District of Columbia Circuit has similarly held that an otherwise timely-filed
electronic notice of appeal should be considered timely, even though a “glitch” in the
ECF system on the day of filing prevented actual entry into the electronic docket. See
Royall v. Nat'l Ass'n of Letter Carriers, 548 F.3d 137, 141 (D.C. Cir. 2008). What ECF
did show was an invoice indicating that counsel had submitted the appropriate filing fee,
Nos. 12-6270/13-5050            Shuler, et al. v. Garrett, et al.                                      Page 4


presumably at the same time the notice of appeal was filed. Relying on the mandate in
Federal Rule of Civil Procedure 5(d)(4) that court clerks must accept filings despite
formal defects, the court concluded that the electronic system’s failure to reflect entry
of the filing was an error in form only and, therefore, did not render untimely the ECF
re-entry at a later date. Id. at 143.

         These two decisions are in accord with other decisions holding that similar kinds
of errors in form do not necessarily render filings untimely. See, e.g., United States v.
Harvey, 516 F.3d 553, 555-56 (7th Cir. 2008) (concluding that a criminal defendant
timely filed his notice of appeal when he submitted it electronically to the clerk's office,
even though he failed to file a paper copy of the notice of appeal, as the local rules
required); Contino v. United States, 535 F.3d 124, 126-27 (2d Cir. 2008) (holding that
counsel’s failure to transmit an electronic notice of appeal with the proper event code
did not render it untimely).

         The district court in this case suggested that these precedents were not persuasive
because the errors in those cases were not caused by the attorneys but by technical
“bugs” in the system. That reading of these opinions is, however, incorrect. In many of
these cases, the ultimate source of the problem was the attorneys, as was true in this
case. See Farzana, 473 F.3d at 704 (“[M]aking a second mistake, counsel used the
docket number of [an earlier] suit.”); Harvey, 516 F.3d at 556; Contino, 535 F.3d at 126.
The precedents — particularly Farzana — appear to be directly on point. And,
significantly, there appears to be no contrary authority.1

         In this circuit, we have honored the admonition in Rule 5(d)(4) of the Federal
Rules of Civil Procedure since its amendment in 1991 to provide, in pertinent part, that
“[t]he clerk shall not refuse to accept for filing any paper presented for that purpose
solely because it is not presented in proper form as required by these rules or any local


         1
            Defendants cite an unpublished opinion from this circuit that did conclude that a Rule 59 motion
that plaintiffs failed to file within the 28-day time period – because plaintiff’s counsel received an incorrect
password for ECF – was untimely. Cook v. United States, 246 Fed. Appx. 990, 995 (6th Cir. 2007). In
that case, however, the motion was not received by the clerk of court within the specified limitations period
in any form whatever. Id. As an unpublished opinion, Cook is not controlling. It is also not contrary to
the decisions discussed above and fully distinguishable from the instant case.
Nos. 12-6270/13-5050      Shuler, et al. v. Garrett, et al.                        Page 5


rules or practices.” Fed. R. Civ. P. 5(d)(4); see also In re Toler, 999 F.2d 140, 141-42
(6th Cir. 1993). Under that rule, plaintiffs’ Rule 59 motion should be considered timely
filed. Furthermore, there is no evidence that defendants suffered any prejudice as a
result of the delay in filing because, on the same day that plaintiffs’ counsel filed the
motion electronically (albeit under the wrong docket number), counsel also served paper
copies of the motion on the defendants, as local rules required.

       Given the weight of authority from our sister circuits and the circumstances of
this case, we conclude that the district court erred in construing the Rule 59 motion as
untimely filed. It follows that the motion effectively tolled the 30-day period for filing
the notice of appeal, which was, in turn, timely filed. The defendants’ motion to dismiss
the appeal is therefore DENIED, and the clerk is directed to issue a new briefing
schedule.
