Weitzner v. Cynosure, Inc., 802 F.3d 303

Plaintiffs Ari Weitzner, an ophthalmologist in Brooklyn, and Ari Weitzner, M.D., P.C., allege Cynosure sent four unsolicited TCPA faxes.
They seek to represent a nationwide TCPA class of over 10,000 similarly situated recipients.
Before this action, Weitzner pursued a Massachusetts Superior Court class action; the court denied class certification.
Cynosure confessed judgment in Massachusetts, awarding damages to Weitzner and enjoining further faxes, while dismissing class claims.
The district court later dismissed this federal suit as claim- and issue-precluded by the Massachusetts judgment, entered March 5, 2013.
Plaintiffs moved for reconsideration on March 15, 2013 but did not file until after briefing was completed, due to the district judge’s Individual Rule 3(d). The fully briefed motion was filed August 14, 2013; the district court denied it February 6, 2014.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FRAP 4(a)(4)(A)(vi) tolling applies	Weitzner contends timely tolling within 28 days preserved appeal.	Cynosure argues no tolling since motion was not filed within 28 days.	28-day tolling is not jurisdictional and may be waived; here no tolling.
Whether Bowles makes tolling jurisdictional or claim-processing	Bowles supports tolling as a non-jurisdictional, waiver-able rule.	Bowles treats time limits as jurisdictional and non-waivable.	Rule 4(a)(4)(A)(vi) is a claim-processing rule; not jurisdictional, but no equitable relief here.
Whether district judge's Individual Rule 3(d) caused forfeiture of rights	Rule should not imperil rights when a party seeks timely relief.	No right to tolling was preserved due to delay and scheduling.	No equitable exception; rule creates risk of forfeiture; policy concerns noted.

Bowles v. Russell, 551 U.S. 205 (U.S. 2007) (distinguishes jurisdictional vs. claims-processing time limits)
Fruit of the Loom, Inc. v. Am. Mktg. Enters., Inc., 192 F.3d 73 (2d Cir. 1999) (distinguishes filing vs. serving motions for tolling)
Camacho v. City of Yonkers, 236 F.3d 112 (2d Cir. 2000) (warns against district rules snaring unwary litigants)
Lizardo v. United States, 619 F.3d 273 (3d Cir. 2010) (treats Rule 59(e) as a claims-processing rule; implicitly supports waiver approach)
United States v. Frias, 521 F.3d 229 (2d Cir. 2008) (time requirements under FRAP are not always jurisdictional)
Khan v. U.S. Dept. of Justice, 494 F.3d 255 (2d Cir. 2007) (post-Bowles view of time rules as potentially non-jurisdictional)