6.4 Dispositive Motions

• Library: Appellate 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Finally, where a case has settled or the appeal has been withdrawn, counsel should notify the court of this development by motion.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...