FEDERAL RULES OF CIVIL PROCEDURE
IX. Special Proceedings
Rule 74 Abrogated Dec. 1
1997 Method of Appeal From Magistrate Judge to
District Judge Under Title 28, U.S.C. § 636(c)(4) and Rule 73(d)
(a) When Taken.
When the parties have elected under Rule
73(d) to
proceed by appeal to a district judge from an appealable decision
made by a magistrate judge under the consent provisions of Title
28, U.S.C. § 636(c)(4), an appeal may be taken from the decision
of a magistrate judge by filing with the clerk of the district
court a notice of appeal within 30 days of the date of entry of
the judgment appealed from; but if the United States or an
officer or agency thereof is a party, the notice of appeal may be
filed by any party within 60 days of such entry. If a timely
notice of appeal is filed by a party, any other party may file a
notice of appeal within 14 days thereafter, or within the time
otherwise prescribed by this subdivision, whichever period last
expires.
The running of the time
for filing a notice of appeal is terminated as to all parties by
the timely filing of any of the following motions with the
magistrate judge by any party, and the full time for appeal from
the judgment entered by the magistrate judge commences to run
anew from entry of any of the following orders:
(1)
granting or denying a motion for judgment under Rule
50(b);
(2)
granting or denying a motion under Rule
52(b) to
amend or make additional findings of fact, whether or not an
alteration of the judgment would be required if the motion is
granted;
(3)
granting or denying a motion under Rule 59 to alter or amend the judgment;
(4)
denying a motion for a new trial under Rule 59.
An interlocutory decision
or order by a magistrate judge which, if made by a district
judge, could be appealed under any provision of law, may be
appealed to a district judge by filing a notice of appeal within
15 days after entry of the decision or order, provided the
parties have elected to appeal to a district judge under Rule
73(d). An
appeal of such interlocutory decision or order shall not stay the
proceedings before the magistrate judge unless the magistrate
judge or district judge shall so order.
Upon a showing of
excusable neglect, the magistrate judge may extend the time for
filing a notice of appeal upon motion filed not later than 20
days after the expiration of the time otherwise prescribed by
this rule.
(b) Notice of Appeal;
Service. The notice of appeal shall specify
the party or parties taking the appeal, designate the judgment,
order or part thereof appealed from, and state that the appeal is
to a judge of the district court. The clerk shall mail copies of
the notice to all other parties and note the date of mailing in
the civil docket.
(c) Stay Pending
Appeal. Upon a showing that the magistrate
judge has refused or otherwise failed to stay the judgment
pending appeal to the district judge under Rule
73(d),
the appellant may make application for a stay to the district
judge with reasonable notice to all parties. The stay may be
conditioned upon the filing in the district court of a bond or
other appropriate security.
(d) Dismissal.
For failure to comply with these rules or any local rule or
order, the district judge may take such action as is deemed
appropriate, including dismissal of the appeal. The district
judge also may dismiss the appeal upon the filing of a
stipulation signed by all parties, or upon motion and notice by
the appellant.
[As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 22, 1993, eff. Dec. 1, 1993. Abrogated eff. Dec. 1, 1997]