The Wall Guy, Inc. v. FDICThe Wall Guy, Inc. v. FDIC
Argued: January 23, 2024
Decided: March 18, 2024
Before AGEE, WYNN, and THACKER, Circuit Judges.
Dismissed by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Steven Todd Cook, COOK LAW OFFICES, PLLC, Barboursville, West Virginia, for Appellants/Cross-Appellees. John William Guarisco, FEDERAL DEPOSIT INSURANCE CORPORATION, Arlington, Virginia, for Appellee/Cross-Appellant. ON BRIEF: B. Amon James, Assistant General Counsel, J. Scott Watson, Senior Counsel, FEDERAL DEPOSIT INSURANCE CORPORATION, Arlington, Virginia, for Appellee/Cross-Appellant.
WYNN, Circuit Judge:
This case originates from a lending relationship between Plaintiffs—Jeffrey Frye and his companies The Wall Guy, Inc., and JR Contractors—and First State Bank (“the Bank”). When that relationship soured, the parties sued each other. What followed was nearly a decade of litigation, including two state-court lawsuits, a jury trial, post-trial motions, removal to federal district court, and motions practice in that court.
As it comes to us on appeal, however, this case turns on the threshold question of whether Plaintiffs have properly invoked our appellate jurisdiction. Because we conclude that they have not, we dismiss the appeal for lack of jurisdiction.
I.
We begin with the relevant factual history.
In January 2016, Plaintiffs sued the Bank in West Virginia state court for, in relevant part, breach of contract (“First Case”). A few months later, the Bank sued Plaintiffs—also in state court—alleging that they had defaulted on various loans (“Second Case”). The court in the Second Case found Plaintiffs had no equity in certain collateral and directed it be surrendered to the Bank. Plaintiffs did not seek timely reconsideration of or appeal that
Meanwhile, in August 2018, the First Case proceeded to a jury trial. The jury awarded Plaintiffs $1,500,000. Following the verdict, the parties entered into an agreement to secure the judgment (“the Pledge Agreement”), with specific real estate identified as collateral.
In March 2019, the state court granted the Bank‘s request for remittitur of the jury verdict. The court concluded that the jury‘s award must have included some inappropriate items, namely, attorneys’ fees and costs and the value of the repossessed collateral in the Second Case. Accordingly, the court reduced the verdict to $524,023. The court then entered final judgment in that amount and notified Plaintiffs that they could accept the judgment, request a new trial, or appeal. Plaintiffs elected to appeal to the Supreme Court of Appeals of West Virginia.1 The Bank filed a cross-appeal. Wall Guy, Inc. v. FDIC., No. CV 3:20-0304, 2021 WL 838889, at *2 (S.D.W. Va. Mar. 5, 2021). In June 2019, the state trial court stayed any further action in the Second Case pending resolution of the appeal in the First Case. Id.
Before the appeal in the First Case could be resolved, however, the Bank was found to be insolvent, resulting in the Federal Deposit Insurance Corporation being appointed as receiver (“FDIC-R”) on April 3, 2020. Pursuant to its authority under
After the stay was lifted, the district court issued an order dated March 5, 2021, concluding that, under this Court‘s decision in Resolution Trust Corp. v. Allen, 16 F.3d 568 (4th Cir. 1994), upon removal, it had to adopt the state-court judgment as its own. Wall Guy, 2021 WL 838889, at *3.
The court noted that, once it did so, the ordinary post-judgment remedies would be available; for example, the parties could file motions pursuant to the Federal Rules of Civil Procedure or could appeal. Id. Accordingly, the district court adopted the state-court remittitur award of $524,023 and gave Plaintiffs the option of either accepting the remittitur or electing a new trial. Id. at *3–4. Three days later, Plaintiffs filed a response accepting the remittitur. In light of that response, on March 15, 2021, the district court entered judgment in favor of Plaintiffs in the amount of $524,023 (“2021 Judgment”).
On April 7, 2021, the FDIC-R timely filed a
limited purpose of allowing the district court to rule on those motions. In our remand order, we directed the parties to submit regular reports on the status of the motions.
In October 2022, the FDIC-R filed an emergency motion in the district court to enforce a provision of the Pledge Agreement requiring the parties to “negotiate” a new Pledge Agreement “without delay and in good faith” if there was a remittitur. J.A. 1344. The FDIC-R contended that, “[b]ecause Plaintiffs accepted a remittitur reducing the judgment from $1.5 million to $524,023, and in order to clear recent cloud-on-title issues on the existing collateral, the [FDIC-R] attempted to exercise its rights under” that provision, but was rebuffed. J.A. 1429. Plaintiffs opposed the FDIC-R‘s emergency motion and filed their own motion to enforce the Pledge Agreement, arguing that the FDIC-R had breached the “deed of trust” attached to the Pledge Agreement by selling “at least two pieces of property” secured by that agreement. Plaintiffs’ Motion to Enforce the Parties’ Pledge Agreement at 4, Wall Guy, Inc. v. FDIC, No. 3:20-cv-00304 (S.D.W. Va. Nov. 1, 2022), ECF No. 76; see J.A. 1346.
On November 17, 2022, the district court resolved the motions pertaining to the Pledge Agreement, granting the FDIC-R‘s motion and denying Plaintiffs’ (“Pledge Agreement Order”). The court ordered the FDIC-R “to provide substitute collateral in the form of a letter of credit for $524,023” and Plaintiffs “to release their judgment liens on the properties listed in the Pledge Agreement” within seven days of receipt of that letter of credit. J.A. 1451.
Plaintiffs did not file a notice of appeal in response to the district court‘s entry of the Pledge Agreement Order. Instead, the next filing on the district court docket was
entered on February 7, 2023, when the district court entered an order resolving the pending
As to the First Case, the court concluded that, while the jury‘s verdict was excessive, remittitur was improper because there was no way for the state court to fairly reduce the verdict without engaging in improper speculation about the jury‘s calculations. But the court noted that, while this scenario would normally require a new trial, no new trial was warranted because the breach-of-contract claim was statutorily unenforceable against the FDIC-R.
As to the Second Case, because the court concluded it was unclear whether the FDIC-R sought further relief in that matter, the court requested clarification from the FDIC-R. That resulted in the FDIC-R moving to dismiss the Second Case without prejudice.
The district court then entered judgment on February 15, 2023, granting final judgment in favor of the FDIC-R on the First Case while dismissing the Second Case without prejudice (“2023 Judgment”) (together with the Rule 59 Order, the “2023 Orders”). Plaintiffs again did not file a notice of appeal on the district court docket.
Instead, on February 28, 2023, Plaintiffs filed a status report before this Court,
statement form this Court requires of counseled appellants. See 4th Cir. R. 3(b); Docketing Statement, Wall Guy, Inc. v. FDIC, No. 21-1414 (4th Cir. Mar. 6, 2023), ECF No. 33 [hereinafter “Docketing Statement”].
On April 7, 2023, the FDIC-R filed a timely “notice of conditional cross-appeal,” seeking a new trial in the event this Court “reverses or vacates in whole or in part any order or judgment that [P]laintiffs have appealed or may appeal from.” J.A. 1477. We consolidated that appeal with the earlier appeals.
On January 4, 2024, a few weeks before oral argument in this case, we ordered supplemental briefing on three questions:
- What specific authority under
Federal Rules of Appellate Procedure 3 and4 establishes the Court‘s subject matter jurisdiction (or lack thereof) to review the [Pledge Agreement Order]? - (a) What specific authority under
Federal Rules of Appellate Procedure 3 and4 establishes the Court‘s subject matter jurisdiction (or lack thereof) to review the [2023 Judgment]?
(b) Are any potential references to the [2023 Judgment] in [Plaintiffs‘] March 6, 2023 docketing statement, including in the “Issues” and “Nature of Case” sections, sufficient to render that docketing statement the “functional equivalent” of a notice of appeal under Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988), and its progeny, for purposes of appealing the [2023 Judgment]?
Supplemental Briefing Order at 2–3, Wall Guy, Inc. v. FDIC, No. 21-1414 (4th Cir. Jan. 4, 2024), ECF No. 61. The parties filed supplemental briefs addressing our questions.
II.
In their Opening Brief, Plaintiffs take issue with four separate orders: the 2021 Judgment, the Pledge Agreement Order, and the 2023 Orders (the Rule 59 Order and the
2023 Judgment). But upon being faced with Plaintiffs’ presentation of the issues, “[o]ur first obligation is to ascertain whether we possess jurisdiction [over] an appeal, an issue we assess de novo.” In re Grand Jury 2021 Subpoenas, 87 F.4th 229, 244 (4th Cir. 2023) (quoting Dickens v. Aetna Life Ins. Co., 677 F.3d 228, 231 (4th Cir. 2012)). Most instructive here, “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007); see
We typically enforce
Further, despite any leniency or flexibility that might apply, the ultimate “burden of establishing” that we have appellate jurisdiction “rests upon the party asserting jurisdiction.” Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577, 584 (4th Cir. 2012). And it is well stated that “[w]here an appellant fails to lead, we have no duty to follow. It is the appellant‘s burden, not ours, to conjure up possible theories
to invoke our legal authority to hear her appeal.” Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011) (Gorsuch, J.). Thus, while in some cases we may “use liberal construction to rescue a facially deficient notice of appeal,” Diaz Aviation Corp., 716 F.3d at 262, in others we may choose to hold an appellant to the burden of proving “that necessary preconditions to the exercise of appellate jurisdiction—including the timely filing of a notice of appeal—have been fulfilled,” Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).
In this case, Plaintiffs have not met their burden to establish appellate jurisdiction. Despite being notified of a possible jurisdictional defect multiple times, they have not offered any valid explanation of why we can exercise jurisdiction over the 2023 Orders—even though, as explained below, that question is dispositive of our jurisdiction over all aspects of this appeal. Moreover, we decline to “rescue” Plaintiffs because even if we were to reach the merits, it appears Plaintiffs’ arguments would fail. So we dismiss these appeals for lack of jurisdiction.
A.
We start with the 2023 Orders, which are the most recent and the most important orders for this appeal. Throughout their briefing on appeal, Plaintiffs’ primary argument for appellate jurisdiction over the 2023 Orders has rested on their April 2021 notice of appeal. But for the reasons we give below, that notice was insufficient to give us appellate jurisdiction over the 2023 Orders.
On April 11, 2021, Plaintiffs filed a motion to reconsider the 2021 Judgment, followed by a notice of appeal pertaining to that judgment. Under Rule 4, that meant that
the notice became effective upon entry of the Rule 59 Order in 2023.
On that point, the Federal Rules of Appellate Procedure provide clear instruction. Under
[appellant] will file the notice of appeal after the district court has decided the issue sought to be appealed,” Manrique v. United States, 581 U.S. 116, 120 (2017) (discussing
The Rules do allow for an earlier-filed notice of appeal to encompass a later-filed entry of the order in particular circumstances. Notably, “[a] notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.”
As one leading treatise puts it, “[g]iven that Rule 4(a)(2) refers to ‘[a] notice of appeal filed after the court announces a decision or order,’ it is unsurprising that courts find that the Rule does not afford relation forward for a notice of appeal that is filed before the court announces the decision that the would-be appellant later seeks to challenge.” 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.5 (5th ed. 2019 & Supp. 2023) (alteration in original); e.g., Marshall v. Comm‘r Pa. Dep‘t of Corr., 840 F.3d 92, 95 (3d Cir. 2016) (“Rule 4(a)(2) does not apply here because Marshall filed his notice of
appeal before the District Court announced its decision.”); United States v. Hansen, 795 F.2d 35, 37 (7th Cir. 1986) (“A notice of appeal filed (as in this case) before the announcement of judgment does not satisfy the condition in Rule 4(a)(2) for postponing the notice‘s effective date.”). This rule makes good sense: before a decision is made, neither party knows whether that decision will be favorable or adverse to their interests.
Circuits confronted with similar situations, where a notice of appeal referred to a pending or imminent motion for which no decision had yet been announced, have agreed with our conclusion that such a notice is insufficient to confer appellate jurisdiction.3 In the Third Circuit case Carrascosa v. McGuire, the district court
the original notice was sufficient to appeal not only the final order, but also the later denial of reconsideration, because it “‘specifically referenced the pending reconsideration motion,’ thereby signaling her intention ‘to seek an appeal of the denial of the Motion for Reconsideration.‘” Id.
The Third Circuit rejected the appellant‘s argument. It held that, under the Rules, the appellant‘s original notice of appeal “became effective on . . . the date that the District Court entered its order denying her Motion for Reconsideration.” Id. at 253. But if the appellant “wanted her appeal ‘to encompass any challenge to’ the District Court‘s denial of that motion, she was required to file a new or amended notice of appeal within the . . . time limit imposed by the Federal Rules.” Id. (emphasis added) (quoting United States v. McGlory, 202 F.3d 664, 668 (3d Cir. 2000) (en banc)); accord United States v. Brown, No. 21-5045, 2021 WL 3027858, at *2 (6th Cir. June 2, 2021) (per curiam) (concluding that the court lacked jurisdiction over an appeal of the district court‘s denial of a motion for reconsideration where the notice of appeal was filed at the same time as the motion, noting that “[a] notice of appeal filed before a ruling is made is premature”).
Similarly, in Bogle v. Orange County Board of County Commissioners, the Eleventh Circuit considered a situation where the district court entered judgment as a matter of law against the plaintiff on April 7, 1997. Bogle v. Orange Cnty. Bd. of Cnty. Comm‘rs, 162 F.3d 653, 656 (11th Cir. 1998). Shortly thereafter, the defendant filed notice of its intent to seek Rule 11 sanctions, and the plaintiff subsequently filed a timely notice of appeal. Id. The notice of appeal stated that the plaintiff was appealing “all Orders of th[e district] Court, including the Final Judgment rendered on April 7, 1997.” Id. at 660.
Then, a few days after the plaintiff filed his notice of appeal, the defendant filed its Rule 11 motion, which the district court ultimately granted. Id. at 656. On appeal, the plaintiff sought to challenge not only the entry of judgment as a matter of law, but also the imposition of sanctions. Id.
The Eleventh Circuit concluded that the earlier-filed notice of appeal was insufficient to confer appellate jurisdiction over the imposition of sanctions. Id. at 661. It held that the fact “[t]hat an order imposing sanctions may have been contemplated” at the time the plaintiff noticed his appeal did not “change the fact that,” at that time, “a decision regarding sanctions had not yet been announced and sanctions had not yet been imposed.” Id. The court further noted that, “[a]lthough notices of appeal are to be given expansive rather than hypertechnical construction, Rule 3(c) requires that a notice of appeal designate an existent judgment or order, not one that is merely expected or that is, or should be, within the appellant‘s contemplation when the notice of appeal is filed.” Id.
We agree with these other circuits: a notice of appeal filed before the district court has even announced a decision on a future or pending motion cannot confer
Instead, for Plaintiffs to appeal the 2023 Orders, they needed to “file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by [Rule 4] measured from the entry of the” Rule 59 Order.
(4th Cir. 2001) (per curiam) (“Because [the appellant] did not amend his notice of appeal after the district court‘s denial of his motion for reconsideration, the issues raised in his motion for reconsideration are not before the Court.” (citing McGlory, 202 F.3d at 668)); Carrascosa, 520 F.3d at 253 (same); Bracey v. Lancaster Foods LLC, 838 F. App‘x 745, 748 (4th Cir. 2020) (unpublished but orally argued) (concluding that the new-or-amended-notice requirement is jurisdictional). This they did not do.
B.
In many cases, the appellant‘s failure to file a formal notice of appeal from a particular judgment would nevertheless not end the inquiry because another, timely filed document would be able to serve as the functional equivalent of that notice. Here, however, we cannot discern from the briefs that such a document exists, and under the circumstances of this case, we decline to independently seek out justifications for exercising jurisdiction.
Under
requirements.4 Torres, 487 U.S. at 317; cf. Gonzalez v. Thaler, 565 U.S. 134, 147-48 (2012).
That said, “[a]n appeal must not be dismissed for informality of form or title of the notice of appeal.”
That is, “[i]f a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.” Id. at 248–49.
So, for example, in Smith v. Barry, the Supreme Court concluded that a pro se appellant‘s informal opening brief could constitute the functional equivalent of a notice of appeal, conferring appellate jurisdiction over the case. Id. at 250. The fact that the brief had been filed in the Court of Appeals—not the district court, as a formal notice of appeal would be—was of no moment because the Rules “set[] out a transmittal procedure to be followed when the notice of appeal is mistakenly filed with an appellate court, and provides that a misfiled notice ‘shall be deemed filed in the district court’ on the day it was received by the court of appeals.” Id. at 249 (quoting
Following Smith, we have allowed a number of different types of documents, filed in either our Court or the district court, to serve as the functional equivalent of a notice of appeal.5 We have emphasized, however, that “[i]n order for us to find that a [document] is the functional equivalent of a notice of appeal, the [document] must be timely under Rule
4 and must satisfy the notice requirements of Rule 3.” Clark v. Cartledge, 829 F.3d 303, 307–08 (4th Cir. 2016). To be “timely under Rule 4” here, id., the document in question needed to be filed within “60 days after entry of the judgment or order appealed from,”6
In the case at bar, the only document filed within the appropriate timeframe that could potentially serve as the functional equivalent of a notice of appeal from the 2023 Orders is the docketing statement that Plaintiffs filed in this Court on March 6, 2023.7 The docketing statement specified the parties taking the appeal and named this Court as the court to which the appeal was taken.
sufficiently “designate[d]” the 2023 Orders as being ones “from which the appeal [was] taken.”
The problem for Plaintiffs is that the docketing statement provided mixed signals as to whether Plaintiffs intended to appeal the 2023 Orders. And yet, when repeatedly, directly prompted to clarify whether their docketing statement could be read to designate the 2023 Orders, Plaintiffs did not provide a valid explanation. Cf. Becker v. Montgomery, 532 U.S. 757, 767 (2001) (“[I]mperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court.” (emphasis added)).
We begin with the mixed signals. In the docketing statement‘s “Jurisdiction” section, under “Date of entry of order or judgment appealed,” Plaintiffs indicated “March 8th, 2021”—not the date of either of the 2023 Orders.8 Docketing Statement at 1. The “Jurisdiction” section‘s only reference to the 2023 Orders was in the box for “Date order entered disposing of any post-judgment motion.” Id. We have held in unpublished authority that such a reference, alone, is insufficient to confer appellate jurisdiction over a post-judgment order. Bracey, 838 F. App‘x at 748. After all, merely noting that a post-judgment order was filed is not enough to indicate that the order is the subject of the appeal. To the contrary, the fact that when the docketing statement specifically required them to state the date the appealed order or judgment was entered, Plaintiffs did not refer to the 2023 Orders,
suggests that those orders were not the subject of the appeal.9
The docketing statement also included a “Nature of Case” section, which directed Plaintiffs to explain the “[n]ature of [the] case and [the] disposition below.” Docketing Statement at 2. In that section, Plaintiffs described the 2023 Orders. Id. at 6. But that description does not obviously designate those orders as being the matters appealed because it is perhaps most naturally read as merely providing a description of the proceedings below, without necessarily designating all those proceedings as the subject of the appeal.
By contrast, later in the docketing statement, Plaintiffs were asked to list the “Issues,” that is, to provide a “[n]on-binding statement of issues on appeal.” Docketing Statement at 3. Among other issues, Plaintiffs stated that the district court “erred by
entering a final order which found judgment in favor of FDIC, essentially granting a JNOV, and reducing Plaintiff[s‘] award to zero and or a negative amount.” Id. That would seem to suggest that Plaintiffs did intend to appeal the 2023 Orders, which are the only orders that could be described in that way. See United States v. Garcia, 65 F.3d 17, 19 (4th Cir. 1995) (noting that, although “orders can be and commonly are identified by their dates of entry, nothing in Rule 3(c) requires an appellant to ‘designate’ an order by date”). This apparent conflict between the Jurisdiction and Issues sections of the docketing statement creates at least some genuine doubt about the basis for their appeal.
It is possible that Plaintiffs’ single reference in the “Issues” section of the docketing statement—or that reference in combination with the description in the “Nature of Case” section—could be enough to designate the 2023 Orders as the orders appealed, particularly given the “liberal[] constru[ction]” we afford to “pleadings under Rule 3.” Id. But we decline to reach that novel question because Plaintiffs have insufficiently made such an argument in support of jurisdiction in this case. While we will liberally construe the contents of a filing that might serve as a notice of appeal, nothing obligates us to liberally construe the briefs of a counseled party who makes only conclusory arguments about why a given filing satisfies the requirements of Rule 3.
In their Opening Brief, Plaintiffs rested their assertion of jurisdiction entirely on the April 2021 notice of appeal—an argument that fails for the reasons explained above. It was the FDIC-R who first noted (and disputed) the docketing statement as a possible source of appellate jurisdiction, when it raised the jurisdictional matter in its Opening-Response Brief and pointed out that a new or amended notice of appeal was required by
In light of the ambiguous nature of the docketing statement explained above, we ordered supplemental briefing on the jurisdictional question. In addition to asking generally “[w]hat specific authority under
Additionally, in their supplemental brief, Plaintiffs argued that the combination of the docketing statement with other previous filings made clear their intent to appeal. The Eighth Circuit appears to have embraced such a theory. See Hawkins v. City of Farmington, 189 F.3d 695, 704 (8th Cir. 1999). But, even assuming we would adopt the Eighth Circuit‘s reasoning, a consideration of the various filings here does not dispel the ambiguity inherent in the docketing statement alone.
To review, Plaintiffs filed a notice of appeal in April 2021, designating (appropriately) the 2021 Judgment and (inappropriately) any judgment from the pending
motions for reconsideration. They thus signaled, albeit ineffectively, that they intended to appeal what they apparently assumed would be an adverse decision on the motions for reconsideration. Yet, as discussed,
Consistent with that Rule, this Court issued a jurisdictional notice in April 2021 directing the parties to immediately inform our Clerk‘s Office “in writing of the district court‘s ruling on the motion [for reconsideration] and whether they intend to appeal the ruling.” Jurisdictional Notice at 1, Wall Guy, Inc. v. FDIC, No. 21-1414 (4th Cir. Apr. 15, 2021), ECF No. 4 (emphasis added). Despite the plain language of the Rule, and despite the jurisdictional notice we provided, Plaintiffs did not file a new or amended notice of appeal, suggesting they did not intend to appeal the 2023 Orders after all.
Instead, Plaintiffs filed a status report in February 2023 that stated, without further elaboration, that “[t]he matter appears ripe for cross-appeal.” Status Report at 1, Wall Guy, Inc. v. FDIC, No. 21-1414 (4th Cir. Feb. 28, 2023), ECF No. 30. Shortly thereafter, they filed the docketing statement, which is ambiguous for the reasons described above. In sum, while the April 2021 notice of appeal suggested Plaintiffs would appeal from an adverse ruling on the motions for reconsideration, their actual behavior after that ruling was ambiguous.
Accordingly, neither in the original round of briefing nor in the supplemental briefs did Plaintiffs raise a clear argument for why we may exercise appellate jurisdiction over
the 2023 Orders. And we are not obligated to make such an argument on their behalf.10 E.g., Raley, 642 F.3d at 1275; Mayor & City Council of Balt. v. BP P.L.C., 31 F.4th 178, 202 (4th Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023).
Nevertheless, in another case, issues of justice might compel us to exercise our discretion to evaluate the jurisdictional question of our own accord. See Manning v. Caldwell, 930 F.3d 264, 271 (4th Cir. 2019) (en banc) (collecting cases regarding our discretion to reach issues not presented by the parties); United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“The party presentation principle is supple, not ironclad. There are no doubt circumstances in which a modest initiating role for a court is appropriate.”). If, for example, the case for vacatur or reversal was particularly compelling, we might have concluded that we should evaluate the docketing statement‘s validity as a notice of appeal regardless of the arguments Plaintiffs did or did not make in support of jurisdiction. And perhaps, in such a case, we would have concluded that the docketing statement could serve as a notice of appeal from the 2023 Orders.11
But here, the case for vacatur or reversal is not particularly compelling. Of course, we do not resolve the issues at hand in this appeal, because we lack jurisdiction to do so. But in the process of reviewing the briefs and hearing oral argument, we have been faced with Plaintiffs’ arguments on the merits related to the 2023 Orders, and our preliminary review suggests that an appeal of those Orders would not be fruitful. Put differently, we are not convinced that this is a case where “the equities require” us to sua sponte put forth reasoning in favor of our jurisdiction. Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 522 n.8 (4th Cir. 1995).
For these reasons, we dismiss Plaintiffs’ appeal as to the 2023 Orders for lack of jurisdiction.
C.
Our decision to dismiss the appeal of the 2023 Orders requires us to also dismiss Plaintiffs’ appeal of the 2021 Judgment and Pledge Agreement Order, as well as the FDIC-R‘s cross-appeal of the 2023 Orders, for lack of jurisdiction.
First, Plaintiffs’ appeal of the 2021 Judgment and the FDIC-R‘s cross-appeal of the 2023 Orders were timely. However, the 2021 Judgment has been replaced by the 2023 Orders, and the FDIC-R only conditionally cross-appealed those Orders in the event we reversed or vacated them. Accordingly, these two appeals are moot. See Int‘l Bhd. of Teamsters, Loc. Union No. 639 v. Airgas, Inc., 885 F.3d 230, 235 (4th Cir. 2018) (“If an
event occurs during the pendency of an appeal that makes it impossible for a court to grant effective relief to a prevailing party, then the appeal must be dismissed as moot.”).
Second, Plaintiffs have not pointed to a timely notice of appeal from the Pledge Agreement Order. The only filings Plaintiffs made within sixty days of that order were status reports filed in this Court on December 1 and 30, 2022, neither of which were even arguably the functional equivalent of a notice of appeal. Instead, Plaintiffs contend that the Pledge Agreement Order merged with the 2023 Orders pursuant to
III.
The Federal Rules of Appellate Procedure are not meant to create a byzantine system that only the cleverest litigants can navigate. To the contrary, “the requirements of the rules of procedure should be liberally construed and . . . ‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Torres, 487 U.S. at 316
(quoting Foman v. Davis, 371 U.S. 178, 181 (1962)). But neither may the Rules be ignored, particularly where, as here, they implicate our appellate jurisdiction over the case.
Nor may appellants rely on us to make jurisdictional arguments for them. In some cases, we may find it appropriate to “rescue” an appellant so as to avoid a circumstance where “a slip of the pen,” the appellant‘s pro se status, or a similar factor results in a notice of appeal that is deficient only in a technical sense, or where we are faced with compelling merits arguments that support such a “rescue” for reasons of justice. Blockel v. J.C. Penney Co., 337 F.3d 17, 24 (1st Cir. 2003) (quoting Town of Norwood v. New Eng. Power Co., 202 F.3d 408 (1st Cir. 2000)); e.g., Clark, 829 F.3d at 306 (pro se appellant); Torres v. Bella Vista Hosp., Inc., 914 F.3d 15, 19 (1st Cir. 2019) (opting to “exercise [the court‘s] discretion to review [a particular] ruling notwithstanding the lack of clarity in the notice of appeal”). But we are not obligated to do so. See Raley, 642 F.3d at 1275.
We decline to make arguments favoring jurisdiction on Plaintiffs’ behalf under the circumstances of this case. Accordingly, we dismiss the cross-appeals for lack of jurisdiction.
DISMISSED
WYNN
CIRCUIT JUDGE
Notes
But we do not resolve this question at this time because Plaintiffs have not argued that the content requirements of Rule 3 are nonjurisdictional. In any event, at minimum, “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles, 551 U.S. at 214. And, as we conclude, Plaintiffs have not satisfied the initial step of pointing to a timely notice of appeal.