6.4 Dispositive Motions

LibraryAppellate Practice - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

6.4 DISPOSITIVE MOTIONS

Federal jurisprudence offers less fertile grounds for dismissal of an appeal than does practice before Virginia's appellate courts, but those grounds may nevertheless exist. For example, an appeal will be dismissed in the federal system when the notice of appeal is not timely filed. 21 Similarly, a failure to properly and timely order the transcripts can result in dismissal of the appeal. 22 Other circumstances that trigger dismissal may be present, depending on the statute or rule at issue. 23

In addition, when an appeal becomes moot, counsel should move to dismiss or to withdraw the appeal. 24 Of course, certain exceptions to the mootness doctrine may nevertheless permit the court to decide the case, most notably when a case is "capable of repetition yet evading review." 25

Finally, where a case has settled or the appeal has been withdrawn, counsel should notify the court of this development by motion. 26 In federal court, such dismissals are governed by Rule 42 of the Federal Rules of Appellate Procedure. 27

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Given the stringent rules governing state appellate practice in Virginia, counsel for an appellee should comb through the record in every case in search of jurisdictional defects. For example, counsel should move to dismiss the appeal where there is an untimely notice of appeal, 28 a late petition for appeal, or a failure to include assignments of error in the petition for appeal. 29 Such motions should be succinct. It is sufficient to point the court to the particular defect and to the controlling rule or case involved. Often, clerks or law clerks will identify obvious defects and the court will dismiss the appeal sua sponte. The safer practice, however, is for counsel to proactively move for dismissal. Moreover, an initial oversight does not foreclose a motion to dismiss the appeal. If a defect is jurisdictional in nature, counsel can move for dismissal even after briefing has been completed.


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Notes:

[21] See Fed. R. App. P. 4(a)(1) (notice of appeal must be filed within 30 days of entry of judgment); see, e.g., Panhorst v. United States, 241 F.3d 367, 370-71 (4th Cir. 2001) ("timely notice of appeal is 'mandatory and jurisdictional'") (citations omitted); Alston v. MCI Commc'ns Corp., 84 F.3d 705, 706 (4th Cir. 1996) (dismissing appeal for failure to file a timely notice of appeal).

[22] Local R. 10(c)(2).

[23] See Fed. R. App. P. 3(a)(2) (allowing the court to "act as it considers appropriate, including...

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