Discretionary appeals at the Ohio Supreme Court are under strict timing requirements pursuant to Supreme Court Rules of Practice 7.01(A). Absent an application for reconsideration or a motion for en banc review in the lower court, a notice of appeal and a memorandum in support of jurisdiction must be filed within 45 days of the judgment being appealed. Under Rule 7.02(E), the Clerk of the Supreme Court is under instructions not to file an untimely notice of appeal (or one being filed without a memorandum in support of jurisdiction). There is no way to get an extension on the timing (absent certain circumstances in criminal cases).
But what if you need an extension on the response? Maybe you are going on vacation, have a pressing work conflict, or just need additional time to research.
Under Supreme Court Rule of Practice 7.03(A), a memorandum in response is due “thirty days after the appellant’s memorandum in support of jurisdiction is filed.”
Supreme Court Rule of Practice 3.03(B) states that except for certain merit brief extensions, “the Supreme Court will not extend the time for filing a document as prescribed by these rules or by court order, and the Clerk of the Supreme Court shall refuse to file requests for extension of time.”
Seems pretty straightforward, right? But have you ever heard the phrase “there are exceptions to every rule?”
How an appellee secured an extension despite procedural rules in Gomez v. Summa Health
On July 31, 2024, the Supreme Court granted an extension to file a memorandum in response in Gomez v. Summa Health (Case No. 2024-0884). But if the Clerk was supposed to refuse to file such a request, how did the appellee in Gomez get it done?
Well, sometimes the Clerk will let you file something contrary to the rules if you change the context. In Gomez, the appellant’s counsel completed the certificate of service on the memorandum in support of jurisdiction indicating that he had “electronically” served the appellee on June 13, 2024, the date of filing. Apparently that service did not actually occur until June 21, 2024.
Based on the June 13, 2024 filing the response in opposition would have been due July 13, 2024.
The appellees still missed this deadline, but went around the “no extension” rule by filing a Motion to Strike on July 19, 2024. The appellees asserted that the error in the appellant’s certificate of service warranted striking the appeal altogether, or in any event, giving them an extension on the response date. The Supreme Court denied the Motion to Strike, but gave the appellees more time to file a response.
What’s the takeaway on extensions?
The Supreme Court Rules of Practice provide strict requirements to the Clerk on accepting certain filings. Knowing what may be automatically rejected (and not filed) and making sure that the filing does not appear to be that – at least on first appearances – may go a long way to achieving your objectives.
Fortunately for the appellees, the Supreme Court did not require an explanation as to why 22 days was insufficient time in which to file a memorandum in opposition or why an additional six days was needed to file a responsive motion.
We have assisted others in unique circumstances helping to get filings approved by the Clerk. For example, an amicus curiae wished to participate in an extraordinary writ case for which a motion to dismiss was pending. The filing was rejected when it was captioned “Brief of Amicus Curiae” – because no briefing schedule had issued. By merely changing the caption to “Memorandum in Response to Motion to Dismiss of Amicus Curiae,” the filing was accepted.
Knowing the applicable rules is just as important as knowing how to work within them.