Withdrawal of Motion to reconsider results in untimely appeal
Vanderwerf v. SmithKline Beecham Corp. involved a claim by surviving family members that the drug Paxil caused or contributed to a suicide. Over the course of the proceedings, several partial judgments were granted, with the end result being that all claims were eventually dismissed. A Rule 59(e) motion to reconsider was timely filed by plaintiffs, but no decision was made on the motion for over 7 months. So Plaintiffs withdrew their motion to reconsider and appealed the summary judgment. But the court said the appeal was untimely, because when the motion to reconsider was withdrawn, the date of the order appealed from was more than 30 days before the notice of appeal was filed.
There is a strong dissent which notes the unfairness of this "catch 22". The dissent notes that the tolling starts with the filing of the motion, and only ends when the court enters an order on the motion.
While not an insurance case, this case notes a trap for the unwary. The court notes the plaintiffs had other options:
The Vanderwerfs had other options, which may have allowed this court to take jurisdiction. First, the Vanderwerfs could have filed a motion requesting a ruling. Second, they could have continued to wait for a ruling, or sought a writ of mandamus in this court, which, if granted would compel the district court to rule on the Rule 59 motion. Third, they might have filed a motion for an extension of time under Federal Rule of Appellate Procedure 4(a)(5)(A)(ii), provided that they might show good cause or excusable neglect underlying the untimely notice. Fourth, they might have filed a premature notice of appeal that would ripen into a timely notice of appeal when the district court finally ruled. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1111 (10th Cir.2007). Finally, it seems the best option may have been for the Vanderwerfs to have moved to withdraw the motion, in hopes that the district court would rule on that motion thereby triggering a 30-day period for the filing of a timely appeal.
The court dismissed the appeal for failure to timely file it.
