     Case: 15-50764   Document: 00513596791      Page: 1   Date Filed: 07/18/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 15-50764                     United States Court of Appeals
                              Summary Calendar                            Fifth Circuit

                                                                        FILED
                                                                    July 18, 2016
KAREN RENEE SUDDUTH,                                               Lyle W. Cayce
                                                                        Clerk
             Plaintiff - Appellant

v.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION; TINA PHAM;
DIAMOND MENDOZA; GARY GOSSETT; SANDRA COCHRAN; THOMAS
M. SUEHS; CHRIS TRAYLOR, in his official capacity as Executive
Commissioner of Health and Human Services Commission,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:
      A notice of appeal of a district court’s judgment is timely filed when it is
docketed in a district court’s Case Management/Electronic Case Files
(CM/ECF) system and a notice of electronic filing of that appeal is sent to
counsel. The notice of electronic filing received by Plaintiff–Appellant Karen
Renee Sudduth reflected that her appeal was filed one day late. Accordingly,
we DISMISS her appeal for lack of jurisdiction.
      This case arises from a suit filed by Sudduth against Defendants–
     Case: 15-50764        Document: 00513596791           Page: 2     Date Filed: 07/18/2016



                                        No. 15-50764
Appellees Texas Health and Human Services Commission, Tina Pham,
Diamond Mendoza, Gary Gossett, Sandra Cochran, Thomas M. Suehs, and
Chris Traylor (Defendants), alleging that they had committed various
discriminatory acts against her in violation of Title VII of the Civil Rights Act
of 1964 and the Americans with Disabilities Act. Following the district court’s
dismissal of some of Sudduth’s claims, Defendants moved for summary
judgment on Sudduth’s remaining claims. On July 13, 2015, the district court
granted Defendants’ motion for summary judgment and entered its judgment
that same day. According to the district court’s docket, Sudduth’s notice of
appeal was then filed on August 13, 2015, 1 a full 31 days after judgment was
entered and therefore a day beyond the time required for filing a notice of
appeal under Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U.S.C. §
2107. 2 Pursuant to the electronic filing procedures for the United States
District Court for the Western District of Texas, a notice of electronic filing was
sent to the parties in the case and reflected that the notice had been “filed on
8/13/2015” in the court’s CM/ECF system. See W. Dist. of Tex., U.S. Dist.
Court, Administrative Policies and Procedures for Electronic Filing in Civil


       1 Sudduth asserts, without record evidence, that her counsel timely filed a notice of
appeal on August 12, 2015, but encountered technical problems. Even assuming that this
was the case, we find for the reasons herein that her appeal was not timely filed.
       2 The rule, in relevant part, states:



        (A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the
       notice of appeal required by Rule 3 must be filed with the district clerk within
       30 days after entry of the judgment or order appealed from.

Fed. R. App. 4(a)(1)(A). For its part, 28 U.S.C. § 2107 states:

       (a) Except as otherwise provided in this section, no appeal shall bring any
       judgment, order or decree in an action, suit or proceeding of a civil nature
       before a court of appeals for review unless notice of appeal is filed, within thirty
       days after the entry of such judgment, order or decree.

28 U.S.C. § 2107(a).
                                                2
     Case: 15-50764      Document: 00513596791        Page: 3    Date Filed: 07/18/2016



                                     No. 15-50764
and Criminal Cases § 2(h) (rev. 2013) [hereinafter Electronic Filing
Procedures]. Sudduth subsequently did not file a motion for extension of time
to file her notice of appeal or take any other curative measures.
      On appeal, we requested that the parties brief whether this circuit
should follow the Second Circuit’s decision in Franklin v. McHugh, 804 F.3d
627 (2d Cir. 2015), which held that an appeal was “filed” on the date that the
notice of electronic filing for the appeal was generated in the CM/ECF system
and the receipt of filing was sent to counsel. Under the Second Circuit’s
approach, Sudduth’s appeal would be untimely because the notice of electronic
filing for her appeal was registered in the CM/ECF system one day after the
prescribed period for filing an appeal had expired. Sudduth argues, however,
that this circuit should not follow Franklin, that her case is distinguishable,
and that, in any event, Franklin should not be retroactively applied to her. We
find the Second Circuit’s reasoning persuasive and Sudduth’s arguments
unavailing. 3
      It is well established “that the timely filing of a notice of appeal in a civil
case [under Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U.S.C.
§ 2107] is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214
(2007). Following this rule, the Second Circuit in Franklin further held that a
notice of appeal was not “filed” until an appellant’s counsel had “complete[d]
the CM/ECF filing process in compliance with the applicable local district court
rules.” Franklin, 804 F.3d at 632. In that case, the appellant’s counsel had
appealed a judgment from the United States District Court for the Eastern
District of New York, but the notice of appeal was electronically filed a day
after the filing period had expired. Id. at 629. The Second Circuit noted that



      3Because we find jurisdiction lacking over the instant appeal, we decline to address
Sudduth’s merits arguments that the district court erred in granting summary judgment.
                                            3
     Case: 15-50764        Document: 00513596791          Page: 4     Date Filed: 07/18/2016



                                        No. 15-50764
the Eastern District of New York mandated electronic filing in counseled civil
cases (like many district courts), the Eastern District’s local rules confirmed
that an electronically filed document would be deemed properly filed, and the
local rules and filing procedures plainly implied that an electronic filing was
not complete until counsel received a notice of electronic filing. 4 Id. at 630–31.
Because counsel for the appellant in Franklin had only received the notice of
electronic filing on October 28, 2014, and the appeal had only become docketed
on that date (despite counsel’s intent to file it earlier), the appeal was untimely
and the Second Circuit lacked jurisdiction there. Id. at 632.
       The instant case presents a similar scenario.                  As the federal rules
provide, “[a] local rule may require electronic filing only if reasonable
exceptions are allowed.” Fed. R. Civ. P. 5(d)(3). Here, the Western District of
Texas, by local rule and electronic filing procedures, requires parties to file
their notices of appeal electronically.            W.D. Tex. Civ. R. 5(a)(1); see also
Electronic Filing Procedures § 3(a). Moreover, the Western District of Texas’
electronic filing procedures state that a notice of electronic filing is
automatically generated when a document is docketed, that this notice
includes the time of filing and docketing, and that a document is not timely
filed on a day unless filing is completed before midnight. See Electronic Filing
Procedures §§ 2(h), 7(c). Much like in Franklin, the Western District of Texas’
local rules and filing procedures “plainly impl[y] that ‘an electronic filing’ is not



       4 The Franklin court noted that the filing instructions for the Eastern District of New
York “could have been more explicit,” but the court found that these instructions sufficiently
indicated that a document was filed when counsel received a notice of electronic filing.
Franklin, 804 F.3d at 630–31. This was because the court’s CM/ECF guide stated that the
notice of electronic filing contained a time stamp and that an electronic filing would be
completed once users of the CM/ECF system arrived at the last screen for filing, which was
the notice of electronic filing screen. Id. at 630. Moreover, the court noted that other district
courts in the Second Circuit explicitly stated that a document was filed upon transmission of
the notice of electronic feeling. Id. at 630 n.4.
                                               4
    Case: 15-50764     Document: 00513596791     Page: 5   Date Filed: 07/18/2016



                                  No. 15-50764
‘complet[e]’” until the notice of electronic filing is generated in the CM/ECF
system and a receipt of filing is sent to counsel. Franklin, 804 F.3d at 631. We
therefore find that—given the ability of district courts to require electronic
filing and the Western District of Texas’ own local rules and filing procedures—
Sudduth’s appeal was not filed until August 13, 2015, and is untimely.
      In arguing that we should not adopt Franklin’s rationale, Sudduth
argues that such an approach does not account for malfunctions in the CM/ECF
system that can delay filing, which Sudduth allegedly encountered. To the
contrary, both the Western District of Texas’ filing procedures and the Federal
Rules of Appellate of Procedure provide for curative action in the event that
such technical issues arise. The electronic filing procedures state that “[a]
Filing User whose electronic filing is or would be made untimely as the result
of a technical failure in the Court’s electronic filing system may seek
appropriate relief from the Presiding Judge in the case.” Electronic Filing
Procedures § 17(b). In addition, the federal rules provide that a district court
may extend the time to file a notice of appeal after a party moves for an
extension no later than 30 days beyond the original filing deadline and upon a
showing of excusable neglect or good cause. Fed. R. App. 4(a)(5); see also
Franklin, 804 F.3d at 632 (responding to similar concerns regarding potential
malfunctions in the CM/ECF system).         Sudduth pursued neither of these
options.   Finally, Sudduth argues that she was not made aware of any
jurisdictional defect until this court requested briefing on this issue and that,
at the very least, Franklin should not be retroactively applied to her case
because it is new law.     But, as previously discussed, the local rules and
procedures here were sufficiently clear as to the requirements for timely filing,
and the onus is on Sudduth, not the court, to be aware of and cure any
deficiencies in the notice of appeal.


                                        5
    Case: 15-50764   Document: 00513596791   Page: 6   Date Filed: 07/18/2016



                              No. 15-50764
      For the foregoing reasons, we DISMISS the appeal for lack of
jurisdiction.




                                    6
