IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50764

Summary Calendar

KAREN RENEE SUDDUTH, 

 Plaintiff - Appellant

v.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION; TINA PHAM; 

DIAMOND MENDOZA; GARY GOSSETT; SANDRA COCHRAN; THOMAS 

M. SUEHS; CHRIS TRAYLOR, in his official capacity as Executive 

Commissioner of Health and Human Services Commission, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:

A notice of appeal of a district court’s judgment is timely filed when it is 

docketed in a district court’s Case Management/Electronic Case Files 

(CM/ECF) system and a notice of electronic filing of that appeal is sent to 

counsel. The notice of electronic filing received by Plaintiff–Appellant Karen 

Renee Sudduth reflected that her appeal was filed one day late. Accordingly, 

we DISMISS her appeal for lack of jurisdiction.

This case arises from a suit filed by Sudduth against Defendants–

United States Court of Appeals

Fifth Circuit

FILED

July 18, 2016

Lyle W. Cayce

Clerk

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Appellees Texas Health and Human Services Commission, Tina Pham, 

Diamond Mendoza, Gary Gossett, Sandra Cochran, Thomas M. Suehs, and 

Chris Traylor (Defendants), alleging that they had committed various 

discriminatory acts against her in violation of Title VII of the Civil Rights Act 

of 1964 and the Americans with Disabilities Act. Following the district court’s

dismissal of some of Sudduth’s claims, Defendants moved for summary 

judgment on Sudduth’s remaining claims. On July 13, 2015, the district court 

granted Defendants’ motion for summary judgment and entered its judgment 

that same day. According to the district court’s docket, Sudduth’s notice of 

appeal was then filed on August 13, 2015,1 a full 31 days after judgment was 

entered and therefore a day beyond the time required for filing a notice of 

appeal under Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U.S.C. § 

2107.2 Pursuant to the electronic filing procedures for the United States 

District Court for the Western District of Texas, a notice of electronic filing was 

sent to the parties in the case and reflected that the notice had been “filed on 

8/13/2015” in the court’s CM/ECF system. See W. Dist. of Tex., U.S. Dist.

Court, Administrative Policies and Procedures for Electronic Filing in Civil 

1 Sudduth asserts, without record evidence, that her counsel timely filed a notice of 

appeal on August 12, 2015, but encountered technical problems. Even assuming that this 

was the case, we find for the reasons herein that her appeal was not timely filed.

2 The rule, in relevant part, states:

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the 

notice of appeal required by Rule 3 must be filed with the district clerk within 

30 days after entry of the judgment or order appealed from.

Fed. R. App. 4(a)(1)(A). For its part, 28 U.S.C. § 2107 states:

(a) Except as otherwise provided in this section, no appeal shall bring any 

judgment, order or decree in an action, suit or proceeding of a civil nature 

before a court of appeals for review unless notice of appeal is filed, within thirty 

days after the entry of such judgment, order or decree.

28 U.S.C. § 2107(a).

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and Criminal Cases § 2(h) (rev. 2013) [hereinafter Electronic Filing 

Procedures]. Sudduth subsequently did not file a motion for extension of time 

to file her notice of appeal or take any other curative measures.

On appeal, we requested that the parties brief whether this circuit 

should follow the Second Circuit’s decision in Franklin v. McHugh, 804 F.3d 

627 (2d Cir. 2015), which held that an appeal was “filed” on the date that the 

notice of electronic filing for the appeal was generated in the CM/ECF system

and the receipt of filing was sent to counsel. Under the Second Circuit’s 

approach, Sudduth’s appeal would be untimely because the notice of electronic 

filing for her appeal was registered in the CM/ECF system one day after the 

prescribed period for filing an appeal had expired. Sudduth argues, however, 

that this circuit should not follow Franklin, that her case is distinguishable, 

and that, in any event, Franklin should not be retroactively applied to her. We 

find the Second Circuit’s reasoning persuasive and Sudduth’s arguments 

unavailing.3

It is well established “that the timely filing of a notice of appeal in a civil 

case [under Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U.S.C. 

§ 2107] is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 

(2007). Following this rule, the Second Circuit in Franklin further held that a 

notice of appeal was not “filed” until an appellant’s counsel had “complete[d]

the CM/ECF filing process in compliance with the applicable local district court 

rules.” Franklin, 804 F.3d at 632. In that case, the appellant’s counsel had 

appealed a judgment from the United States District Court for the Eastern 

District of New York, but the notice of appeal was electronically filed a day 

after the filing period had expired. Id. at 629. The Second Circuit noted that 

3 Because we find jurisdiction lacking over the instant appeal, we decline to address 

Sudduth’s merits arguments that the district court erred in granting summary judgment.

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the Eastern District of New York mandated electronic filing in counseled civil 

cases (like many district courts), the Eastern District’s local rules confirmed 

that an electronically filed document would be deemed properly filed, and the 

local rules and filing procedures plainly implied that an electronic filing was 

not complete until counsel received a notice of electronic filing.4 Id. at 630–31. 

Because counsel for the appellant in Franklin had only received the notice of 

electronic filing on October 28, 2014, and the appeal had only become docketed 

on that date (despite counsel’s intent to file it earlier), the appeal was untimely 

and the Second Circuit lacked jurisdiction there. Id. at 632.

The instant case presents a similar scenario. As the federal rules 

provide, “[a] local rule may require electronic filing only if reasonable 

exceptions are allowed.” Fed. R. Civ. P. 5(d)(3). Here, the Western District of 

Texas, by local rule and electronic filing procedures, requires parties to file 

their notices of appeal electronically. W.D. Tex. Civ. R. 5(a)(1); see also 

Electronic Filing Procedures § 3(a). Moreover, the Western District of Texas’ 

electronic filing procedures state that a notice of electronic filing is 

automatically generated when a document is docketed, that this notice 

includes the time of filing and docketing, and that a document is not timely 

filed on a day unless filing is completed before midnight. See Electronic Filing 

Procedures §§ 2(h), 7(c). Much like in Franklin, the Western District of Texas’ 

local rules and filing procedures “plainly impl[y] that ‘an electronic filing’ is not 

4 The Franklin court noted that the filing instructions for the Eastern District of New 

York “could have been more explicit,” but the court found that these instructions sufficiently 

indicated that a document was filed when counsel received a notice of electronic filing. 

Franklin, 804 F.3d at 630–31. This was because the court’s CM/ECF guide stated that the 

notice of electronic filing contained a time stamp and that an electronic filing would be 

completed once users of the CM/ECF system arrived at the last screen for filing, which was 

the notice of electronic filing screen. Id. at 630. Moreover, the court noted that other district 

courts in the Second Circuit explicitly stated that a document was filed upon transmission of 

the notice of electronic feeling. Id. at 630 n.4.

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‘complet[e]’” until the notice of electronic filing is generated in the CM/ECF 

system and a receipt of filing is sent to counsel. Franklin, 804 F.3d at 631. We 

therefore find that—given the ability of district courts to require electronic 

filing and the Western District of Texas’ own local rules and filing procedures—

Sudduth’s appeal was not filed until August 13, 2015, and is untimely.

In arguing that we should not adopt Franklin’s rationale, Sudduth 

argues that such an approach does not account for malfunctions in the CM/ECF 

system that can delay filing, which Sudduth allegedly encountered. To the 

contrary, both the Western District of Texas’ filing procedures and the Federal 

Rules of Appellate of Procedure provide for curative action in the event that 

such technical issues arise. The electronic filing procedures state that “[a] 

Filing User whose electronic filing is or would be made untimely as the result 

of a technical failure in the Court’s electronic filing system may seek 

appropriate relief from the Presiding Judge in the case.” Electronic Filing 

Procedures § 17(b). In addition, the federal rules provide that a district court 

may extend the time to file a notice of appeal after a party moves for an 

extension no later than 30 days beyond the original filing deadline and upon a 

showing of excusable neglect or good cause. Fed. R. App. 4(a)(5); see also

Franklin, 804 F.3d at 632 (responding to similar concerns regarding potential 

malfunctions in the CM/ECF system). Sudduth pursued neither of these 

options. Finally, Sudduth argues that she was not made aware of any 

jurisdictional defect until this court requested briefing on this issue and that, 

at the very least, Franklin should not be retroactively applied to her case

because it is new law. But, as previously discussed, the local rules and 

procedures here were sufficiently clear as to the requirements for timely filing, 

and the onus is on Sudduth, not the court, to be aware of and cure any 

deficiencies in the notice of appeal.

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For the foregoing reasons, we DISMISS the appeal for lack of 

jurisdiction.

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