United States District Court, E.D. Pennsylvania
the time to file a notice of appeal from the judgment entered
in this action expired and while the plaintiff Ronn
Homer's timely motion for attorney's fees was
pending, the defendant, The Law Offices of Frederic I.
Weinberg, moved under Fed.R.Civ.P. 58(e) for an order to
treat the motion for attorney's fees as one made under
Fed.R.Civ.P. 59, tolling the appeal period until the fee
motion is decided. Homer contends we cannot extend the time
because the time to appeal the judgment has already expired.
November 9, 2017, judgment was entered in favor of plaintiff
Ronn Homer.On November 27, 2017, Homer filed a motion
for attorney's fees under Fed.R.Civ.P.
54(d). Weinberg filed a response in
opposition. On January 4, 2018, Weinberg moved under
Rule 58(e) requesting that Homer's motion for
attorney's fees be treated as a timely motion under Rule
59 for the purpose of tolling the time to take an
notice of appeal must be filed within thirty days from the
entry of judgment. Fed. R. App. P. 4(a)(1)(A). The time limit
may be extended when a motion for attorney's fees under
Rule 54 has been filed so that the judgment and the attorney
fee decision can be considered in one appeal. Fed. R. App. P.
4(a)(4)(A)(iii); 12 James Wm. Moore et al., Moore's
Federal Practice § 58.04 (2018).
provides that “if a timely motion for attorney's
fees is made under Rule 54(d)(2), the court may act before a
notice of appeal has been filed and become effective to order
that the motion have the same effect under [Fed. R. App. P.]
4(a)(4) as a timely motion under Rule 59.” Fed.R.Civ.P.
58(e). In other words, a court may toll the
running of time to file a notice of appeal from a judgment
while a timely motion for attorney's fees is pending.
contends that once the thirty-day period has passed, the
district court cannot extend the time. Weinberg has not
addressed this argument. Thus, the question is whether a
district court may only extend the time for appeal
“before a notice of appeal has been filed and become
effective” as the Rule states.
the Third Circuit has not addressed the issue, the Second,
the Fifth, and the Seventh Circuits have held that a court
may not extend the time period after the thirty-day period
has expired. See Robinson v. City of Harvey, 489
F.3d 864, 868-69 (7th Cir. 2007); Burnley v. City of San
Antonio, 470 F.3d 189, 199-200 (5th Cir. 2006);
Mendes Junior Int'l Co. v. Banco do Brasil,
S.A., 215 F.3d 306, 313-15 (2d Cir. 2000).We agree.
Second Circuit, in Mendes Junior International Company v.
Banco do Brasil, S.A., 215 F.3d 306 (2d Cir. 2000),
concluded that Rule 58 places a temporal restriction on the
court's power to extend the time to file a notice of
appeal by treating a timely motion for attorney's fees
under Rule 54 as a motion under Rule 59. Id. at 312.
The Mendes court explained, “[t]he phrase
‘before a notice of appeal has been filed and
has become effective, ' . . . plainly means that if a
notice of appeal has been filed and is effective, such an
order cannot properly be entered.” Id. at 313
(emphasis in original). Consequently, after the time to file
an appeal has expired, there is no time period to extend.
Id. To conclude otherwise would result in an
indeterminable period to appeal that would have the effect of
reviving an expired appeal. Id. at 313-14.
Fifth and Seventh Circuits adopted the Mendes
approach. See Robinson, 489 F.3d at 868-69
(rejecting the position that a district court had the power
to revive an already-expired time for appeal under Rule 58);
Burnley, 470 F.3d at 199 (finding no reason for the
court to issue a Rule 58 order where the appeals from the
merits judgment and fee judgment could not be taken at the
agree with those courts. If the thirty-day period to file an
appeal has expired, the ability to effectuate an appeal is
lost. Thus, once the appeal period has run, the court has no
authority to extend the time to file a notice of appeal from
judgment in favor of Homer was entered on November 9,
2017. Weinberg had until December 11, 2017 to
file a Rule 58(e) motion to treat Homer's motion for
attorney's fees as a timely motion under Rule 59. Fed. R.
App. P. 4(a)(1)(A). It did not do so until January 4,
2018. Therefore, because Weinberg did not move
under Rule 58 before the notice of the appeal was filed and
the appeal became effective, we shall deny its motion.
 Order Granting J. for Pl. (Doc. No.